Page v. Belvin Et

• Court: Virginia Supreme Court
• Writing for the Court: Lacy, J
• Citation: Page v. Belvin Et, 14 S.E. 843, 88 Va. 985 (1892)
• Decision Date: 07 April 1892
• Parties: Page v. Belvin et; al.

14 S.E. 843

88 Va. 985

Page

v.Belvin et; al.

Supreme Court of Appeals of Virginia.

April 7, 1892.

Municipal, Corporations — Fee or Streets — Change op Grade — Validating Ordinance-Rights op Abutting Owner, —Parol Evidence.

1. The fee of the streets of the city of Richmond is in the abutting owners, subject to the lawful use of the streets by the city. Telegraph Co. v. Williams, 118. E. Rep. 106, 86 Va. 700, and Hodges v. Railroad Co., (Va.) 14 S. E. Rep. 380, followed.

2. The committee of the common council of the city of Richmond on streets undertook to change the grade of a street without the authority of the common council. Held, that the council had no power to validate the acts of the committee, in the premises, by subsequent ordinance.

3. But, if such power of subsequent validation existed, the right of action accruing to an abutting owner by reason of the change of grade could not be taken away by the passage of such validating ordinance.

4. The recorded resolution of the committee on streets, their report to the common council, and a resolution of the council founded thereon, referred only to the relaying of gutters in the street in question. Held, in an action in trespass for changing the grade, that the testimony of the members of the council was improperly admitted to show that the council in fact ordered the grade of the street to be changed.

Error to circuit court of city of Richmond; B. R. Wellford, Jr., Judge.

Action by L. R. Page against Preston Belvin and others. From a judgment for defendants, plaintiff brings error. Reversed.

Pegram & String-fellow and Staples & Munforcl, for plaintiff in error.

C. V. Meredith, for defendants in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Richmond city, rendered on the 10th day of November, 1890. The action is trespass by L. R. Page, a resident of Richmond city, against the defendants in error, Preston Belvin and others, who are members of the committee on streets of the city council, and W. E. Cutshaw, city engineer, and two contractors for the work, for an alleged trespass committed by them on his lot on Grace street, in Richmond city, in digging up the sidewalk and street contiguous to his residence, and lowering the grade of the street, and causing him great annoyance and damage. The action is brought against these gentlemen as indi viduals, not as officers of the city government, upon the ground that they committed the acts complained of without being previously authorized by the city council, in which body the city charter vested whatever authority there was to the end attained. And these defendants concede that, in strictness of law, they did not have authority to do this work, but they say they did it in the usual way streets were graded, and reported their action to the city council, where it was ratified. They say, also, that they supposed the plan usually adopted was lawful. The matter was set in motion by a petition signed by the plaintiff (Page) and the other residents on both sides of Grace street between Fifth and Sixth streets, addressed to the committee on streets, asking to have the cobble-stone gutters taken up and replaced with granite gutters, the "present gutters being very rough and out of grade." The committee on streets, with its clerk and the city engineer, went to the spot, in response to the petition of the property holders, and, after examination, resolved: "Relay gutters Grace, Fifth to Sixth, (both sides;) spalls. Stratton; rec'd. Have done if app'd by com. and eng'r;" which, being interpreted, meant that the committee would recommend to the council that the prayer of the petition of the property holders be granted, if approved by the ward committee and the city engineer. And so subsequently, upon the reommenda-tion of the committee on streets, the council resolved that "the sum of $575 be, and the same is hereby, appropriated from the street fund to pave granite gutters on both sides of Grace streetfrom Fifth to Sixth street." Without other authority than this the defendants went in this street, at th« place indicated, and changed the grade of the whole street, and lowered the street nearlv three feet, at a cost to the city of $1,694.56, instead of $575, to repair the gutters, and damaged the plaintiff in the sum of $1,250, which was expended necessarily to remodel the en trance to his house to adapt it to the changed grade of the street. It appeared in evidence that the defendant Belvin went to see the plaintiff, Page, to give him notice about what he and others were about to do in front of his house; but Mr. Page, who is a prominent lawyer in this city, was very busy, and postponed any interview on the subject at that time, and promised to call on Mr. Belvin at his place of business, which Mr. Page did do several times; but it so happened, from various causes not necessary to detail, that they did not meet until the work was well under way, and the pavement pulled up, both having at different times left the city. The plaintiff went around among the denizens of that quarter to see what could be done to stop this digging and grading, the plaintiff having in the past been city attorney, and some of the other residents being at the time in the city legislature. But nothing could be done to stop the work, and the plaintiff brought his suit for damages.

At the trial there was no dispute about the facts, and the plaintiff and the defendants asked instructions, but the court refused all of the instructions, except one ofiered by the defendants, as follows: "The court instructs the jury that the council of the city of Richmond had the power to authorize the cutting down or grading of the street in front of the plaintiff's lot, as it was done by the city engineer, under the order of the committee on streets; and that as the said council did by the resolution of May 15, 1890, (offered in evidence,) ratify all acts and works done in such cutting down or grading, the plaintiff is not entitled to recover of the defendants, and the...