Leiper v. City and County of Denver

• Decision Date: 02 April 1906
• Citation: 36 Colo. 110,85 P. 849
• Parties: LEIPER v. CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

85 P. 849

36 Colo. 110

LEIPER v. CITY AND COUNTY OF DENVER et al.

Supreme Court of Colorado, En Banc.

April 2, 1906

Rehearing Denied May 7, 1906.

Error to District Court, City and County of Denver; S. L Carpenter, Judge.

Action by the city and county of Denver and the city of Denver against John H. Leiper. Judgment in favor of defendant, and plaintiffs bring error. Affirmed.

Isham R. Howze, for plaintiffs in error.

H. A Lindsley and H. L. Ritter, for defendants in error.

CAMPBELL J.

The sole question for decision is whether a municipality is liable to an abutting lot owner for damages resulting thereto from the authorized lowering or raising of the grade of a public street from the natural surface to a grade established by municipal ordinance in the first instance, notwithstanding the fact that the change is reasonable and the work of making the same is skillfully performed. In City of Denver v Bonesteel, 30 Colo. 107, 69 P. 595, section 15 of article 2 of our Constitution, which is here invoked as creating such liability, was considered at some length. It was there held that under this provision, which declares that private property shall not be taken or damaged for public or private use without just compensation, where a permanent grade of a street is established by a city, and an abutting lot owner improves his property in conformity thereto, the city is liable in damages to such property occasioned by a subsequent change of the grade of the street. In prior decisions of this court, referred to in the opinion, the same clause of the Constitution was the subject of careful consideration. While in the various cases the precise question now presented was not expressly determined, the court, as then constituted, made several observations, which were strictly germane to the exact point decided, that indicated its disapproval of the principle now invoked by the plaintiff. It is true that in some of the cases from other states cited in the Bonesteel opinion it was ruled that the municipality is liable to an abutting owner for consequential damages caused by a reduction from the natural surface to a grade established in the first instance, as well as from one authorized grade to another. In other cases the doctrine is applied only in the latter contingency. This diversity in the holdings was expressly referred to at page 111 of 30 Colo. and page 596 of 69 P. Such reference, however, was not intended as a final or definite expression of our approval of the former doctrine, or rejection of the latter. Yet that opinion shows that not only is there nothing in any of our own previous cases inconsistent with the conclusion then reached, but all such antecedent expressions of opinion were regarded as consistent with the distinction drawn by Judge Dillon, in his valuable work on Municipal Corporations (4th Ed. § 995b), which was then clearly indicated as the basis of the decision, and as foreshadowing our present conclusion, namely, that municipal liability in these cases should be limited to changes in established grades, and is not to be extended to reductions from the natural surface, except when the change is unreasonable or carelessly made.

It must be conceded that in Illinois, from which our constitutional provision is borrowed, and in the majority of the other states that have adopted similar clauses, a municipality is held liable for consequential damages resulting from changes in the grade of the street, whether made for the first time or for a change from one established grade to another. However, we are now constrained to hold that for reasonable and carefully made changes of the grade of a public street from the natural surface to a legally established grade in the first instance a municipality is not liable to the abutting lot owner for consequential damages to his property. We are led to this conclusion, not only because of the strong reasons advanced by Judge Dillon, supra, but also because of our former decisions, which, in view of the general understanding of the profession as to the doctrine they announce, should be regarded as stare decisis. Judge Dillon, at section 995a, in stating what the abutting lot owner, who builds with reference to the natural surface, in law is bound to contemplate with respect to the power of the municipality in changing the grade of streets, says: 'In view of these considerations, it seem to us clear that for the original establishment of a grade line and the reduction of the natural surface of the street for street purposes to such line there is no legal right or even natural equity in the dedicator or his assignee to compensation.' He further says: 'But where a grade has been officially established, and particularly where improvements have been thereafter made according to such established grade, and it is afterwards changed to the injury of the abutting owners there is a strong natural equity in their favor for compensation. * * * For the reasons above suggested, it seems to us that, on principle, the mere provision of the Constitution imposing a liability for property damaged for public use does not create a liability on the part of the municipality for reducing the natural surface of the street, in the course of its normal and ordinary improvement for street purposes proper, to a grade line for the first time established. If there are cases to the contrary, we doubt whether they were well considered, and think that they are not well decided. * * * Although sensible of the apparent difficulty of defining the grounds for the distinction, it seems to us, where a grade line has been officially established, and where property has been improved on the faith of it (which is, of course, done on the assumption that the grade is permanent, although the power to...