Less v. City of Butte

• Decision Date: 11 April 1903
• Citation: 28 Mont. 27
• Parties: LESS v. CITY OF BUTTE.
• Court: Montana Supreme Court

28 Mont. 27

LESS

v.CITY OF BUTTE.

Supreme Court of Montana.

April 11, 1903.

Commissioners' Opinion. Appeal from District Court, Silver Bow County; John Lindsay, Judge.

Action by Andrew Less against the city of Butte. From a judgment for plaintiff, defendant appeals. Affirmed.

On June 8, 1881, the owners of the ground included in the present Leggatt & Foster addition to the city of Butte platted the same in lots and blocks, with intervening streets, and filed a plat thereof with the county clerk of Silver Bow county, Mont. East Broadway street, designated upon the plat, is an extension of Broadway street in said city. On March 25, 1893, this addition was regularly annexed to the city of Butte, and East Broadway was dedicated to the city as a public street. Some time in the year 1893 the plaintiff became the owner of lot 9 in block 4, fronting on East Broadway in said addition, built upon his lot a two-story house, and made other improvements thereon, relying upon the grade of the street as it then existed, and in conformity to the street as the same was then traveled and used. By an ordinance passed and approved July 17, 1895, a grade line was established along Broadway street, across and over the Leggatt & Foster addition, and in front of the lot owned by plaintiff. The grade thus established was the first and only grade established by the corporate authority of the city upon the street in front of the lot of plaintiff. Thereafter, on April 21, 1897, the city council passed a resolution ordering Broadway street excavated and graded from the east side of Oklahoma avenue to the east side of Gaylord street, in front of plaintiff's property, to said grade line. The city did not agree, or attempt to agree, with the plaintiff, upon the amount of damages which he would sustain to his premises on account of such change of grade and excavation, and did not pay or tender to plaintiff anything on account thereof, and did not appoint any freeholders to make an appraisement of the damages or of the benefits which would result to the plaintiff's premises by reason of the change of grade and excavation of the street; but pursuant to said resolution the city did, during the summer of the year 1897, proceed to grade and excavate the street so as to make the same conform to the grade line so established as aforesaid. The street in front of plaintiff's premises was thus graded and excavated to the depth of about seven feet, and the sidewalk in front of the plaintiff's house was located at about the same depth, in order to conform to the street as graded. The plaintiff then presented his claim to the city council, demanding $500 damages because of the grading and excavation mentioned, but the city refused to pay the same, or any part thereof. The plaintiff thereupon began this suit. The case was tried upon an agreed statement of facts and upon oral testimony. At the conclusion of plaintiff's case the defendant moved the court for a nonsuit upon the ground “that the grade on Broadway street adjoining the property of the plaintiff was the first and only grade ever established on Broadway street, and under the laws of Montana in force at the time the city of Butte had a right to establish said grade to reduce the street in conformity to the grade established, and is not liable to the plaintiff by reason of any damages that he may have sustained by reasonof the first establishment of the grade.” The court overruled the motion, and gave judgment for plaintiff in the sum of $500, as prayed for in his complaint. From this judgment the defendant appeals.

E. M. Lamb, for appellant.

McHatton & Cotter, for respondent.

CALLAWAY, C. (after stating the facts).

By the common law, municipal corporations were not held liable for consequential damages resulting to property owners by reason of changes in street grades. The municipal authorities might change or alter the grades of public thoroughfares at will, and the adjoining owners had no redress. It was considered that, public improvements being for the good of the body politic, and always being in contemplation, the individual purchased his city or town property charged with knowledge that changes might be made as required by public necessity and convenience. So, too, when one platted a town site, and dedicated certain portions thereof to the public for streets, he and his grantees were presumed to contemplate the changes which would necessarily result from public improvements. The rule damnum absque injuria was held to apply to all such cases, unless the injury could be shown to have resulted from the negligent or improper manner in which the work was done. Such is the doctrine asserted in Callender v. Marsh, 1 Pick. 418. and other cases cited by appellant. The framers of our Constitution abrogated this harsh rule by section 14, art. 3, which reads as follows: “Private property shall not be taken or damaged for public use without just compensation having first been made to or paid into court for the owner.” It seems very clear to us that this section was drafted in the broad language stated for the express purpose of preventing an unjust or arbitrary exercise of the power of eminent domain. It overturns the doctrine that one owning city or town property must continually live in dread of the changing whims of successive boards of aldermen. Constitutions which provide that “private property shall not be taken for public use without just compensation” are but declaratory of the common law, and contemplate the physical taking of property only. Under constitutions which provide that property shall not be “taken or damaged” it is universally held that “it is not necessary that there be any physical invasion of the individual's property for public use to entitle him to compensation.” Root v. B. A. & P. Ry. Co., 20 Mont. 354, 51 Pac. 155, and cases cited. The owner of a city lot “has a kind of property in the public street for the purpose of giving to such land facilities of light, of air, and of access to the street.”...