Ray v. The City Of Huntington.

Decision Date05 February 1918
Citation81 W.Va. 607
PartiesM. B. Ray v. The City of Huntington.
CourtWest Virginia Supreme Court
1. Municipal Corporations Change of Grade Damages to Abut-

ting Property Amount.

If a street be opened upon the natural surface as a grade line and dedicated to public use and be so used, though the dedication be not accepted otherwise than by recognition and acquiescence and the owner of a lot abutting thereon build with reference to such grade knowing that public convenience and necessity may require it to be altered and it is altered whereby the value of the lot is depreciated, the municipality is liable for the injury to the lot only as if it were unimproved, (p. 611).

2. Same Change of Grade Recovery Constitutional Provisions.

If property be improved to conform with a recognized surface grade line, alterations therefrom whether done negligently or not entitle the owner, if not at fault, to recover for the injury thereby occasioned under section 9, Art. III., Constitution, (p. 611).

3. Same Change of Grade Action for Damages Waiver.

Joining in a petition i-equesting the paving of a public street does not operate as a waiver of the right to prosecute an action for the injury done to the property, (p. 614).

4. Same Municipal Action Vote of Council.

Ordinarily a municipality acts only through its assembled council whose will can be expressed only by a vote embodied in some distinct and definite form. (p. 609).

5. Same Street Grade Representation of Unauthorised Agent

Effect.

The representations of an unauthorized agent as to street grades not formally or definitely established does not bind the municipality, (p. 609).

6. Same Change of Grade Improvement Recovery.

Though the owner of a lot abutting on a street with a natural surface grade line may ordinarily be entitled to damages for an injury to the lot occasioned by an alteration of the grade, he cannot recover for improvements thereon made with knowledge of the necessity for such alteration, p. 611).

Error to Circuit Court, Cabell County. Action by M. B. Ray against the City of Huntington. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

F. M. Livezey, for plaintiff in error. Daugherty & Riggs, for defendant in error.

Lynch, Judge:

This review deals with a judgment against the City of Huntington for the alleged impairment of the value of a lot abutting 80 feet on Davis Street, occasioned, it is claimed, by lowering the street grade in front of it. Although the street apparently formed part of, and co-ordinated with, the general municipal street system or plan, the city did not lay it out nor formally accept or adopt it; though the public did use it and the city exercised some control over it, as if it were a thorofare adopted for the general use of the public.

When and before plaintiff: purchased the lot in 1912, the ' surface of the street remained, with slight variation, in its initial or natural condition and so continued until 1916 when the grading complained of was done under the direction of the proper municipal authorities according to the detail plan prepared by the city engineer and approved by them in that year.

Two partially inconsistent theories of liability are advocated, one by plaintiff, that the usage of the street by the public at the natural grade with the knowledge and acquiescence of the city, the grant by it of a franchise to a public service corporation to occupy the street to plant telegraph poles, string and operate wires thereon, and the performance of certain labor by the city upon the street at the surface grade operated as such an establishment of the street grade as to prevent any radical departure from it injuring his property without liability for compensation; the other by defendant, that as the city had not until 1916 fixed any grade for Davis Street in that locality and that as plaintiff elected to improve his lot prior to the establishment of a grade he did so impliedly with knowledge of the right of the city to establish another and different one and when so established to improve the street relative thereto, wherefore he is not entitled to damages.

Though the declaration contained no averment, if any were necessary directly or inferentially, warranting the introduction of any evidence on the subject, plaintiff as a witness on his own behalf on the trial was permitted, over objection timely interposed, to testify and did testify that at his request an attache of the city engineering department located for him the corners of the lot and informed him what the grade of the street was; and that acting upon this information he lowered the surface of the lot and erected the building thereon, wherefore by way of an additional reason he concludes that defendant is liable for any injury due to a variation from the grade so reported. Evving did by survey ascertain and did by stakes designate the lot corners about the time fixed by plaintiff, for which service the attache received the usual compensation; but this work did not pertain to the engineering department. Speaking from a memorandum in the office, Maupin, the city engineer, and Ewing admit the location of the corners and the receipt of the fee but say the memorandum shows no other work was done and the memorandum impliedly corroborates them. They agree also in saying in effect that no corporate action was taken by the city as regards the establishment of such grade until 1916, more than two years after the survey, and that they had no authority to fix grades at all.

Primarily, the legislative department of the state govemmerit has the exclusive right to lay out and establish public highways and direct the performance of the work necessary and incident to the discharge of that duty. It alone could exercise supreme control over the highways including those within a municipal corporation. This authority and power of control over the streets located within the city the legislature could, and by a charter amendment passed in 19.13 (Ch. 85, Acts) did, delegate to the defendant; see also sec. 28, ch. 47, Code. That power is ample and unlimited. The grant substituted the city for the legislature and endowed the former with all the authority possessed by the latter; and as a legislature can speak only by its record, so the same restriction applies to the city. When it undertakes to exercise the right conferred and perform the duty imposed, it can do so only by an ordinance, order or resolution regularly passed and recorded as required by sec. 38 of the charter (Acts 1901, Ch. 150), which shall be kept open and subject, whenever convenient, to inspection by any one interested in knowing what the corporation has done affecting his interest. The safe and only prudent course to pursue is to resort to this lawful source of information rather than to a department having no competent authority or right to do or perform any act or duty not lawfully intrusted to it, certainly not when to do so would violate the rule against the redelegation of a ^delegated power: Sutherland v. Miller, 91 S. E. 993. If plaintiff desired to know in 1913 whether defendant had established the grade and if so what it was, the desired information was available to him and it was his duty to apply to it rather than to accept and act upon the unauthorized advice of another; and if he failed to his detriment to do what ordinary pru dence demanded, he, not the city, must suffer the inevitable consequences of the dereliction. Moundsville v. Yost, 75 W. Va. 224.; Rutherford v. Williamson, 70 W. Va. 402. A municipality acts only through its assembled council whose will can be expressed only by a vote embodied in some distinct.and definite form. Dillon, Munic. Corps. (5th Ed.) sec. 1677 and note. See also, M.cCormiek's Appeal, 165 Pa. 386, and Mattingly v. Plymouth, 100 Ind. 545. Besides, one who deals with an agent must know whether the latter has been commissioned to represent the principal in the transaction. These general observations are impotrant now only to show the irregularity of the ruling upon the admission of the testimony relative to this branch of the case, when objected to by defendant.

The authorities are not harmonious upon the question whether under a constitutional provision such as our sec. 9, Art. III, requiring compensation for property taken or damaged, an injury to property occasioned by a change from the natural or initial grade, one not regularly established by councilmanic action, requires the city to respond in damages for the wrong done. Some of them say no such liability ensues. There is, however, a general concurrence of decision that an owner who improves his property without regard even to a regularly established paper grade has no cause of complaint for the injury done; this upon the theory that it is not unjust or unfair but right, all interests being considered, that the purchaser should take notice of such grade and conform with it in afterwards placing improvements on his lot: Denver v. Vernia, 8 Colo. 399; Reilly v. Ft. Dodge, 118 la. 633; Manning v. Shreveport, 119 La. 1044; Clinkenbeard v. St. Joseph, 122 Mo. 641; Omaha v. Williams, 52 Neb. 40; Groff v. Philadelphia, 150 Pa. St. 594; Gray v. Salt Lake City, 44 Utah 204; Jones v. Gillis, 75 Wash. 688; Blair v. Charleston, 43 W. Va. 62; In re Vyse St., 95 N. Y. Supp. 893. In other jurisdictions and here according to some decisions the rule is that where injuries result to property improved to conform with a recognized natural grade alterations therefrom whether done negligently or not entitle the owner to compensation.

There is in the record x>roof sufficient to warrant the assumption of the actual existence of a grade established by such use, in which the city acquiesced or which it recognized, as to impart to the highway the character of actual adoption by the authorities intrusted with control. This usage, acquiescence and recognition furnish the basis for...

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10 cases
  • City of Williston v. Ludowese
    • United States
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    ...of its human agencies, in this case the board of city commissioners. 19 R. C. L. 1139; Dill. Mun. Corp. (5th Ed.) § 1677; Ray v. Huntington, 95 S. E. 23,81 W. Va. 607, L. R. A. 1918D, 931. It follows that upon this phase of the case the findings of the trial court are in accord with the fac......
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