Red v. Little Rock Railway & Electric Co.

• Decision Date: 15 November 1915
• Docket Number: 246
• Citation: 180 S.W. 220,121 Ark. 71
• Parties: RED v. LITTLE ROCK RAILWAY & ELECTRIC COMPANY
• Court: Arkansas Supreme Court

180 S.W. 220

121 Ark. 71

RED v. LITTLE ROCK RAILWAY & ELECTRIC COMPANY

No. 246

Supreme Court of Arkansas

November 15, 1915

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

Judgment affirmed.

Jno. D Shackleford, for appellant.

The use by a city of the natural surface of a street, especially where the abutting property has been improved to conform thereto, is tantamount to the adoption of the natural surface as the grade line. 104 Ark. 136; 35 L. R. A. 852; 28 Montana 27.

Where a change of grade from the established one is made so as to damage abutting property, the city is liable to the owner for such damages. Art. 2, Sec. 22, Const.; 45 Ark. 429; 98 Ark 206; 104 Ark. 136; 89 Ala. 182; 43 W.Va. 62; 3 Tex. Civ. App. 537; 83 Tex. 239; 7 Tex. Civ. App. 202; 10 S.D. 312; 69 P. 89; 103 Cal. 614; 130 Cal. 492; 102 Minn. 358; 83 Ill. 535; 102 Ill. 64; 141 Ill. 346; 246 Ill. 394; 96 Pa. 331; 103 Pa. 358; 150 Pa. 589; 119 Mo. 187; 78 Mo. 107; 21 F. 257; 124 Ga. 852.

The city was the agent of the street car company in passing the ordinances, and principal and agent are alike responsible for the damage occasioned.

Rose, Hemingway, Cantrell, Loughborough & Miles, for appellee Little Rock Railway & Electric Co.

There can be no question of principal and agent between the city and the street railway company in this case.

A city council is authorized by statute to grant franchises to street railroads, to create improvement districts, and to fix the grades of streets, and when so doing is acting in its legislative capacity. 101 Ark. 225. The considerations which move it to act in such matters are not subject to review by the courts. 64 Ark. 152; Horr & Bemis on Municipal Police Ordinances, par. 128.

The fact that the street car company was the beneficiary of the acts done under the ordinances, by the agencies created thereby, would not render it liable for damages.

Jas. Mehaffy, for appellee City of Little Rock.

Appellant does not allege a change in the grade of the street, nor does he allege that the surface or natural grade had been adopted as the grade of the street. Before there can be liability upon the city, a grade must have been established, or the surface grade adopted as such grade.

A city is not liable for damages sustained by abutting property owners by reason of an original establishment of a grade line and the reduction of the street to such line. Dillon Munic. Corp. (5 ed.) 2940-41; 69 P. 89; 102 N.W. 751; 53 A. 633; 111 S.W. 284; 95 P. 975; 34 Ohio 328; 2 Ohio St. 148; 28 Ohio Cir. Ct. R. 173; 135 P. 631.

Appellant's complaint does not state a cause of action against the city. He alleges that his damage was caused by Improvement District No. 225, which was organized for the use and benefit of the street railway company. The city council has no authority to refuse to pass an ordinance creating an improvement district, and when established, it is not the agent of the municipal corporation, but the agent of the property owners of the district. 55 Ark. 148.

OPINION

SMITH, J.

This is a suit brought by appellant against appellees for damages alleged to have been sustained, as a result of the change of grade in the street, in front of property owned by him.

Demurrers were filed by each of the appellees on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the demurrers were sustained by the court below.

The complaint alleged ownership of a lot situated on the southwest corner of the crossing of Sixteenth and May streets in the city of Little Rock. That the defendant street car company procured to be passed by the city council an ordinance No. 1909, a copy of which was made an exhibit to the complaint, and that by said ordinance said company was granted a right-of-way over May street in said city. That on the 27th of January, 1913, the said railway company procured the city council to pass an ordinance, No. 1914, by which the grades on said May street were fixed by said council for the use and benefit of said railway company, and a copy of this ordinance was also made an exhibit to the complaint. It was further alleged that the city council passed an ordinance, No. 1956, by which said May street south from Fourteenth street, and in front of the plaintiff's property, was created into Improvement District No. 225, and a copy of this ordinance was also made an exhibit to the complaint. It was alleged that the enactment of all of these ordinances was procured by the street car company, as a result of which the street car company proposed an extension of its lines on said May street. It was also alleged that an excavation had been made in front of plaintiff's property on Sixteenth and May streets by the improvement district pursuant to said ordinance No. 1956, and that the grades used by said district were those furnished by the city council, as prescribed by said Ordinance No. 1914, and that by reason of said excavation all means of egress and ingress to said premises were destroyed. That the property had a frontage on Sixteenth street of fifty feet and on May street of 150 feet, and that there were two dwelling houses and one store house on said lot, all of which were built facing on May street, and "that said buildings were all erected prior to the passage of said ordinance No. 1909, or any other ordinance, by which said May street was to be built to a grade fixed by the defendant city of Little Rock for the use and benefit of said defendant railway and electric company, and, that on account of the arrangement of said buildings, plaintiff had no means of egress or ingress from said Sixteenth street."

Plaintiff alleged his attempt to arbitrate his damages under the provisions of Section 5495 of Kirby's Digest, and the failure of the city to respond by the appointment of an appraiser.

Damages in the sum of $ 2,500 were prayed.

The ordinance No. 1909, granting to the street car company the right-of-way over May street, provided that the street car company should not be required to commence the building of its line until all necessary grading, cutting and filling had been done, and it was provided that the provision of the ordinance granting the franchise should be null and void unless "the cost of bringing the roadbed for the street car tracks to the proper grade shall be borne and taken care of by some individual or corporation, other than the city of Little Rock, or the Little Rock Railway & Electric Company." And it was further provided that "said roadbed shall be brought to proper grade within one year from the passage of this ordinance, otherwise this grant or franchise shall be null and void."

It is urged that as a result of these provisions the street car company did not obligate itself to extend its line until the property owners had finished cutting, filling and grading the streets, and that this work should be an accomplished fact within the time fixed, before the street car company should be required to make the extension of its line, and do the amount of paving required by its general franchise from the city of Little Rock. It is further pointed out on behalf of the street car company that the complaint contains no allegation that it either directly or otherwise cut, filled or graded any part of the street in...