De Lucca v. City of North Little Rock
| Decision Date | 30 December 1905 |
| Citation | 142 F. 597 |
| Parties | DE LUCCA v. CITY OF NORTH LITTLE ROCK et al. |
| Court | U.S. District Court — Eastern District of Arkansas |
[Copyrighted Material Omitted]
Morris M. Cohn, John Fletcher, and Gray & Gracie, for complainants.
James P. Clarke, for defendant city.
TRIEBER District Judge (after stating the facts).
As there is a diversity of citizenship, the jurisdiction of this court may be maintained upon that ground without determining whether the complainant is, by the action of the city deprived of any right guaranteed to him by the Constitution of the United States which would authorize him, if there were no diversity of citizenship, to invoke the jurisdiction of this court.
The Constitution of the state of Arkansas provides in the Bill of Rights, article 2, Sec. 22:
'The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.'
Article 12, Sec. 9, provides:
'No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.'
On the part of complainant, it is contended that under those provisions of the Constitution, before any corporation, whether it be public or private, can do any act whereby the property of a private citizen is damaged, there must be full compensation made therefor to the owner or first secured to him by a deposit of money, and as the building of this viaduct will result in serious damage to the property of the complainant, and no compensation having been paid to him therefor or secured by a deposit of money, the building of the viaduct would deprive him of a right guarantied to him by the constitution of the state. On the other hand, it is contended on behalf of the defendant city that, as article 2, Sec. 22, which provides for compensation for damage to property, contains no such provision, and the further fact that the General Assembly of the state has made no provision for any proceedings whereby damages resulting to property by reason of the erection of a viaduct or the use of the streets, when no property of the complainant is actually taken or invaded, may be assessed before the street is used, it is not necessary, nor, in fact, is it possible, for a city to make such compensation or institute proceedings whereby the money could be deposited for the payment of such damages as the owner of the property may sustain, and that the provision of the Constitution which requires such compensation or deposit of money applies only to the taking of property, and not to damage thereto. It is the settled law of the state of Arkansas that the fee to the streets is not in the city, but in the abutting owner. Reichert v. St. Louis & S.F. Ry. Co., 51 Ark. 491, 11 S.W. 696, 5 L.R.A. 183. In the absence of a constitutional provision of the state that private property shall not be damaged for public use without just compensation therefor, the well-settled rule is that the owner of property which has not been invaded, nor any part thereof taken, cannot recover for any damages incidentally arising from the use of the public highway. Transportation Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336; Osborne v. Missouri Pacific Ry. Co., 147 U.S. 248, 13 Sup.Ct. 299, 37 L.Ed. 155.
Learned counsel have cited a large number of cases to sustain their respective contentions. A case upon which counsel for complainant have laid great stress is McElroy v. Kansas City (C.C.) 21 F. 257, decided by Mr. Justice Brewer, at that time circuit judge, and which has been cited with approval and followed by the Supreme Court of the United States in several cases, as well as by many other courts of last resort. But the constitutional provision of the state of Missouri, in which state the case arose, is quite different from that found on the Constitution of the state of Arkansas. The Missouri Constitution provides:
Judge Brewer, in determining the principles of law applicable to cases of that kind, says:
'When the defendant has an ultimate right to do the act sought to be restrained, but only upon some condition precedent, and compliance with the condition is within the power of the defendant, injunction will almost universally be granted until the condition is complied with.'
In Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 58 L.R.A. 775, 95 Am.St.Rep. 720, the same conclusion was reached as in the McElroy Case; the Constitution of that state containing almost the identical provision found in that of Missouri, that private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the use of, the owner. In Vanderlip v. City of Grand Rapids, 73 Mich. 522, 41 N.W. 677, 3 L.R.A. 247, 16 Am.St.Rep. 597, the act enjoined was the raising of a grade of a street, which would result in filling, not only the street, but complainant's lot to a depth of 30 feet in some places, and burying a portion of her dwelling. This, the court held, was an invasion of her property amounting to a taking thereof, and it was the duty of the court to enjoin the city from doing so until compensation had been made to the owner. City of Pueblo v. Strait, 20 Colo. 13, 36 P. 789, 24 L.R.A. 392, 46 Am.St.Rep. 273, and N.Y. Elevated R.R. Co. v. Fifth National Bank, 135 U.S. 432, 10 Sup.Ct. 743, 34 L.Ed. 231, were both actions at law to recover damages, and not proceedings in equity to enjoin the defendants. In St. Louis & San Francisco R.R. Co. v. Southwestern Telegraph & Telephone Co., 121 F. 276, 58 C.C.A. 198, the injunction was granted upon the sole ground that the defendant was not incorporated, and for this reason had no right to maintain a suit of condemnation. Hot Springs R.R. Co. v. Williamson, 45 Ark. 429, and Reichert v. Railroad Company, 51 Ark. 491, 11 S.W. 696, 5 L.R.A. 183, were both actions at law to recover damages, and not suits for injunction. In Texarkana v. Leach, 66 Ark. 40, 48 S.W. 807, 74 Am.St.Rep. 68, the injunction was granted solely upon the ground that the city had no power, under the laws of the state, to close a street. Pine v. New York City (C.C.) 103 F. 337, affirmed in 112 F. 98, 50 C.C.A. 145, has no application to the case at bar, and in view of the fact that these decisions were reversed by the Supreme Court in 185 U.S. 93, 22 Sup.Ct. 592, 46 L.Ed. 820, they can hardly be treated as authorities. In Doane v. Lake Street Elevated R.R. Co., 165 Ill. 510, 46 N.E. 520, 36 L.R.A. 97, 56 Am.St.Rep. 265, under constitutional provisions identical with those of the state of Arkansas, it was held that an owner of abutting property whose property is not taken, but only damaged incidentally, cannot maintain a bill to enjoin until the resulting damages to his property are ascertained and paid, but that his remedy is by action at law for such damages, quoting with approval from Osborne v. Missouri Pacific R.R. Co., 147 U.S. 259, 13 Sup.Ct. 303, 37 L.Ed. 155:
In the case at bar the viaduct which is sought to enjoin is to be built by the city for the protection of the public, and not merely by a private corporation for private gain, although for public use, as was the case in the Doane Case. In Blodgett v. Northwestern Elevated R.R. Co., 80 F. 601, 26 C.C.A. 21, the United States Circuit Court of Appeals follows the decision in the Doane Case.
In the late case of Manigault v. Springs, 199 U.S. 473, 26 Sup.Ct. 127, 50 L.Ed.-- decided by the Supreme Court of the United States on December 4, 1905, where it was sought to enjoin parties from damming or otherwise obstructing a creek in the county of Johnstown, S.C., upon the ground that the erection of such a dam would result in serious injury to complainant's property and there had been no compensation to him, and the further ground that an agreement between the parties entered into in 1903 created an easement of access to plaintiff's land, which the statute of South Carolina authorizing the building of the dam impaired, the Supreme Court said:
'It is suggested that the agreement of 1903 created an easement of access to plaintiff's land, and that the statute of South Carolina must be constructed as overriding private rights of property, and not merely as putting an end to the rights of the public and as giving to plaintiff a claim for damages for the taking of that easement. But it does not necessarily follow that an injunction should issue. Apparently this covenant did not apply to the mill site, since this was purchased after the covenant...
To continue reading
Request your trial