Manley Ettor v. City of Tacoma No 68 Edwin Howard v. City of Tacoma No 69
| Decision Date | 07 April 1913 |
| Docket Number | Nos. 68 and 69,s. 68 and 69 |
| Citation | 33 S.Ct. 428,57 L.Ed. 773,228 U.S. 148 |
| Parties | MANLEY ETTOR and Mary T. Ettor, Plffs. in Err., v. CITY OF TACOMA and Chicago, Milwaukee, & St. Paul Railway Company. NO 68. EDWIN HOWARD and Emma Howard, Plffs. in Err., v. CITY OF TACOMA and Chicago, Milwaukee, & St. Paul Railway Company. NO 69 |
| Court | U.S. Supreme Court |
Messrs. Stanton Warburton, John M. Boyle, E. B. Brockway, and C. M. Boyle for plaintiffs in error.
Messrs. Heman H. Field, George W. Korte, and T. L. Stiles for defendants in error.
These were actions to recover for damage inflicted upon abutting property in consequence of an original street grading done by the railroad company under authority and direction of the city of Tacoma.
At the time the grading was done there was in force an act of the Washington legislature which required the city to make compensation for consequential damages due to an original street grading. Pending these suits, and while they were actually being heard, the provision of the act referred to which expressly required the city to provide for or make compensation for all such damage was amended so as to provide that the act should not apply to the original grading of any street. Laws of Washington, 1907, p. 316, and Laws of 1909, p. 151. When the attention of the trial court was called to this repealing act, it dircted a verdict for the city upon the theory that the right of action was statutory and fell with the statute, there being no saving clause. This judgment, upon the same ground, was affirmed by the supreme court of the state.
For the plaintiffs in error the contention, shortly stated, is, that the act of 1907 was the sole legislative authority of the city for making the cuts and fills in front of their premises upon the public street, and that that act expressly required the city to make provision for compensating an owner so damaged; and that their right to such compensation, having accrued while the act was in force, cannot be destroyed by subsequent legislation without a violation of the rights guaranteed by the 14th Amendment.
In the absence of legislation requiring compensation for such damage the general rule of law is that a municipality, in making, grading, and improving streets, is the agent of the state, exercising in the performance of such work a governmental power, and is not liable for consequential injuries to property abutting, if it keep within the street, and use reasonable care and skill in doing the work. 4 Dill. Mun. Corp. 5th ed. §§ 1674, 1677; Smith v. Washington, 20 How. 135, 15 L. ed. 858; Northern Transp. Co. v. Chicago, 99 U. S. 635, 641, 25 L. ed. 336, 338; Humes v. Knoxville, 1 Humph. 403, 34 Am. Dec. 657. This was the general law as announced by the supreme court of Washington in its first opinion in the case of Fletcher v. Seattle 43 Wash. 627, 86 Pac. 1046, 88 Pac. 843, and is the general law of the state, as announced by the court's opinion in the instant case. Where the benefits equaled the injury, there was, of course, no injustice in the application of the general rule. But where the damage exceeded the benefits, there was an apparent injustice in casting upon such an owner an undue share of the cost of an improvement for the public benefit. This was recognized in Northern Transp. Co. v. Chicago, supra, where municipal nonliability was said to be due to the fact that in improving its highways the municipality was but the agent of the state, and that, as the state could not be sued, its agents were equally immune for improvements authorized by the law of the state, without the consent of the state. But this equity which exists when the benefits are less than the damage affords a strong foundation for legislation requiring compensation in such circumstances. This consideration doubtless led to the legislation of the state, requiring compensation for such damage, under which the rights of the plaintiffs in error are asserted.
Whatever may have been the authority of the city of Tacoma under its charter or the general law of the state, to take or damage property for the purpose of opening, making, improving, or grading its public streets, and its immunity from liability for consequential damages in making an original grading, prior to the legislation found in the two acts of 1893 and 1907, Laws of Washington, 1893, p. 189, and Laws of 1907, p. 316, it is plain that the acts in question cover the whole subject of its authority and its liability for taking private property or 'damaging' it, in either making, grading, or regrading its public streets. The two acts referred to are identical in every essential. The latter is a mere re-enactment of the first, by which its provisions are extended to a larger class of municipal corporations.
The act of 1893 was construed and applied by the supreme court of the state in Fletcher v. Seattle, supra. The action was by the owner of premises which had sustained damage while the act was in force, in consequence of an original grading. He recovered a judgment, which, upon a first hearing, was reversed by the supreme court, that court holding that consequential damages arising from an original grading, when the work had been done with due care, was neither a taking nor a damaging of private property within the meaning of the Constitution of the state, requiring compensation for taking or damaging private property for public purposes. But, upon a rehearing, the attention of the court was for the first time called to the act of 1893, and the contention advanced that the only authority of the city to take or damage the property of the plaintiff for the purpose of grading the street was under that act, and that, by its terms, the city was required to make compensation for damage arising from an original grading. The construction of that act upon facts like those in the present case was thereby directly involved. It was urged that the 47th section did not require compensation for consequential damages, but in answer to this, the court said:
'We think the word 'damages' used in the section [the 47th] has the same significance and meaning that it has in other sections of the same act, and that it was used in its broad sense and includes consequential damages. We see no reason why this provision of the law should be segregated from the other provisions, and a different construction placed upon it, or why the provisions of the act in relation to the assessment of the damages should not apply to it as it does to the other sections; and if it does, the right of compensation is equally granted.
land, and it was found that it did damage it, and it damaged it in a way that it was authorized by § 47 of this act; namely, by establishing a grade on the street upon which their property abutted. And this idea is manifested throughout the act. That the section does not contemplate such damages as are caused by an encroachment or actual trespass upon the lands of the owner, as is suggested by the appellant, is manifest from the language of the section itself, which evidently contemplates that the work will be upon the street, and not upon the abutting property.
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