Manning v. City of Shreveport
| Decision Date | 18 November 1907 |
| Docket Number | 16,533 |
| Citation | 44 So. 882,119 La. 1044 |
| Court | Louisiana Supreme Court |
| Parties | MANNING v. CITY OF SHREVEPORT |
On Rehearing.
The first question for consideration is whether the establishment of the first grade in the streets in question entitles plaintiff to recover consequential damages to his property under article 167 of the state Constitution.
In our original opinion a majority of the court answered this question in the affirmative, citing Hickman v. City of Kansas, 120 Mo. 110, 25 S.W. 225, 23 L.R.A. 658, and notes, 41 Am. St. Rep. 684. In that case a county road had been graded and used as such for many years, and residences and stores had been constructed on both sides for a considerable distance. The plaintiff had improved his property with reference to the then existing grade. Subsequently the limits of the city of Kansas City were extended so as to take in the road in front of the plaintiff's property, and by ordinance the grade was changed and elevated about 3 1/2 feet. A street railway was constructed on the new grade and the street filled in whereby plaintiff was compelled to raise his lot and improvements to conform to the established grade, at a cost of about $ 1,000.
The case before the court was one of the change of grade of a highway already established and graded. The Missouri Supreme Court, however, in its opinion, stated that the rule was the same in that state whether the grade was changed or was the first one established.
In the notes to Hickman v. City of Kansas we find a number of cases holding that damages caused by bringing a street to the first established grade are recoverable, and a few cases that qualify this doctrine by excepting changes which must have been in contemplation of the parties when the property was taken or dedicated. The jurisprudence on the subject is collated in the notes to Leiper v. Denver (Colo.) 7 L.R.A. (N.S.) 108, where it was held that:
"A municipal corporation is not liable for injury to abutting property by alteration of the natural surface of a street in bringing it to the first established grade, where the change is not unreasonable or carelessly done, even under a constitutional provision that private property shall not be damaged for public use without compensation."
Judge Dillon is cited by the Colorado court as holding the same doctrine (see Municipal Corporations [4th Ed.] vol. 2, § 995b), and the courts of Georgia and Mississippi are referred to in the opinion as possibly announcing the same rule of law. The editor of Lawyers' Reports Annotated says:
"An examination of the authorities shows that they are massed against the position taken by the court in Leiper v. Denver."
The Colorado court admits that its decision is contrary to the rule laid down in the majority of the cases.
Further reflection has convinced the writer of this opinion that quoad the damage to private property, there can be, in law, no difference between the initial grading and the change of the grade of a street. Both are acts done in the proper exercise of governmental powers and for a public purpose; but, if injury thereby result to private property, compensation must be made. In Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820, 31 L.Ed. 638, it was held that, under the provision in the Illinois Constitution of 1870 that "private property shall not be taken or damaged for public use without compensation," a recovery may be had in all cases where private property has sustained a substantial injury from the making and use of an improvement that is public in its character. In that case the city of Chicago was held...
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