Phelps v. City of Detroit

• Decision Date: 19 June 1899
• Citation: 120 Mich. 447,79 N.W. 640
• Court: Michigan Supreme Court
• Parties: PHELPS v. CITY OF DETROIT.

79 N.W. 640

120 Mich. 447

PHELPS v. CITY OF DETROIT.

Supreme Court of Michigan

June 19, 1899

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by Ralph Phelps, Sr., against the city of Detroit. From a judgment for defendant on a directed verdict, plaintiff brings error. Reversed.

Edwin F. Conely, Orla B. Taylor, and Ralph Phelps, Jr., for appellant.

C. D Joslyn and Arthur Webster, for appellee.

LONG J.

This is an action on the case to recover damages for the depreciation of the rental value of plaintiff's property by the action of the city in constructing a bridge on the highway in front of such premises over the Michigan Central Railroad tracks. The plaintiff is, and has been for many years, the owner of several lots, upon which houses have been constructed fronting upon Fourteenth avenue, in the city of Detroit, conforming to the grade of the street, and from which he had received large amounts of rent. In 1875 the defendant erected a bridge over the Michigan Central Railroad tracks, which crosses Fourteenth avenue adjoining the plaintiff's premises. This bridge takes up the entire width of the street, except about five feet on each side thus depriving the property of the benefits of the street as a street. The approaches to the bridge, which are immediately in front of the plaintiff's premises, are built of stone iron, and earth, and varying from 10 to 40 feet in height. This bridge and its approaches have remained in this condition continuously since its erection in 1875. It is admitted by the defendant that the erection of the bridge caused some damage to the plaintiff's property, but it is contended: (1) That there was never any liability whatever on the part of the city for damages occasioned by the erection of the bridge; (2) that, if there ever was any liability, the claim is barred by the statute of limitations. The court below concurred in these views, and directed the verdict in favor of defendant.

We cannot concur in either of these contentions. Since the decision of this court in Schneider v. City of Detroit, 72 Mich. 240, 40 N.W. 329, I have always supposed that the question of such liability was settled in this state. The charter provisions of the city were similar to those in force in 1875, when this bridge was constructed. The facts in that case were identical with the present, but the question of the statute of limitations was not involved. The inquiry there was whether the common council of the city of Detroit had authority to construct the bridge over the railroad tracks, and it was conceded by Mr. Justice Champlin who wrote the opinion, that, if the authority to build the bridge existed,-all the proceedings having been regular, and the bridge and approaches having been erected according to plans adopted,-the city would not be liable. The charter of the city under which the council claimed the right to construct the bridge provided that it (the council) should have power to establish, widen, and extend streets and avenues in the city, and to grade, pave, repair, and otherwise improve the streets and highways. Section 33, subc. 7, Act No. 326, Loc. Acts 1883. The only section of the charter (section 38 of the same chapter) which then conferred in express terms upon the council the authority to erect a bridge in the street restricted that authority to the purpose of sewerage or drainage, and, as Mr. Justice Champlin there said, "did not extend to the purpose of securing a safe crossing of a railroad track by erecting a bridge in the street." He said further: "Is the authority implied from the section conferring power to grade, improve, or extend streets? *** I do not think it is either expressly given or necessarily implied by the terms of the charter. The construction of bridges over railroads is not the ordinary or usual method of grading streets. The exercise of the power to erect such bridges in streets would necessarily involve quite an amount of abutting property in damage, and some entirely in destruction, for any beneficial use or enjoyment. Such consequences cannot be brought under the general power to grade streets, but must be provided for under the power of eminent domain. Private property cannot be appropriated for the public use without the necessity therefor is first determined by a jury under our constitution, and compensation awarded and paid. Doubtless the method of crossing a railroad by a viaduct is safer than a crossing at grade, and upon streets which are recognized thoroughfares, over which the public are almost constantly passing and repassing, such bridges would greatly conduce to the public safety and convenience, and it would be wise for the legislature to confer upon municipalities the authority to erect such structures in the streets, and condemn private property for that purpose, if necessary; but until this is done by special enactment I do not think it can be done under the power now conferred by the general authority to grade, make, repair, and improve streets. It follows that the city authorities had no right to erect the bridge in the street in question so far as to injure the plaintiff in the usual and ordinary enjoyment of his property, and the city is liable to him for the injury for which he has complained in damages." The writer of the present opinion concurred with Justice Champlin. Mr. Justice Campbell said in the case: "I agree in the result arrived at by my Brother Champlin. But I have no doubt the city may build bridges where necessary for safe passage, subject always to the payment of damages when it injures private property, as was here done." These views were concurred in by Justices Sherwood and Morse. The learned counsel for the defendant in the present case seem to have entirely misconceived what Mr. Justice Campbell had in mind in adding what he did to the opinion. He agreed in the result,-that is, agreed that the city was liable for the damages sustained by the plaintiff,-and undoubtedly agreed also to the proposition that the charter provisions were not broad enough to warrant the action, and consequently the power, if it existed, must necessarily come from the right of eminent domain; that, this right not having been exercised, the city had acted without authority, and was a wrongdoer, and must respond in damages. But the learned counsel for the defendant says that "Mr. Justice Campbell must have had in mind the damages following a direct injury, such as was sustained by the plaintiff in Ashley v. City of Port Huron, 35 Mich. 296, and not damages for incidental injury caused by changing the grade of a street or erecting a necessary bridge." The views expressed by Mr. Justice Campbell must be read in the light of the questions there involved, and the result which Mr. Justice Champlin reached, in which all the members of the court concurred. Even if the city, in the present case, had been clothed with the power to construct this bridge by right of eminent domain, no such proceedings having been taken it would be held liable for damages to abutting property. Hoffman v. Railroad Co. (Mich.) 72 N.W. 167. In 1893 an act was passed by the legislature with special reference to the proceedings for the separation of grades. Act No. 92, Pub. Acts 1893. In the case of Harper v. City of Detroit, 110 Mich. 427, 68 N.W. 265, it appeared that the action was brought to recover damages to abutting property in the construction of a bridge by the city over certain railroad tracks. No proceedings had been taken under the act of 1893 to condemn the property and fix the damages. It was held that proceedings should have been taken under this act, which was intended for the protection of owners of property upon highways and streets; and that, such proceedings not having been taken, the city was liable in damages. We not only think the case of Schneider v. City of Detroit settles the question in favor of plain...