Richardson v. City of Sioux City

• Decision Date: 20 November 1907
• Citation: 113 N.W. 928,136 Iowa 436
• Parties: RICHARDSON v. CITY OF SIOUX CITY.
• Court: Iowa Supreme Court

136 Iowa 436

113 N.W. 928

RICHARDSON

v.CITY OF SIOUX CITY.

Supreme Court of Iowa.

Nov. 20, 1907.

Appeal from District Court, Woodbury County; J. L. Kennedy, Judge.

Action at law to recover damages growing out of a change in street grade. From a verdict and judgment in favor of plaintiff, defendant appeals. Reversed and remanded for new trial.J. N. Weaver and Fred W. Sargent, for appellant.

Marks & Marks, for appellee.

BISHOP, J.

Plaintiff is the owner of real property in Sioux City described as lots 4, 5, and 6, block 52, Sioux City East addition. In dimension the lots are each 50 by 150 feet, extending east and west. They are bounded on the west by Nebraska street, and on the south by Ninth street. They number from north to south. Prior to the year 1871 a large house of 10 rooms had been built on the property, and this was located near the southwest corner, facing Ninth street. As constructed, it covered parts of lots 5 and 6. During the year mentioned, a grade for Nebraska and Ninth streets was established by ordinance; the level thereof being below the natural surface of the lots, varying approximately from 2 to 6 feet. It does not appear that the city council ever took official action to bring the streets to the grade thus established, but it would seem that some excavating work was done on both streets. Following the establishment of the grade, plaintiff's grantor built a double house on the easterly portion of lots 5 and 6, facing Ninth street. Still later he built a single house on the westerly end of lot 4, facing Nebraska street. In addition to these, a barn was built on the easterly end of lot 4, and some coal sheds and other outhouses on lots 5 and 6. All the buildings mentioned were constructed in conformity with the natural surface of the lots. So, also, shade trees were planted on the lots and along the Ninth street parking, and a brick retaining wall was built along Ninth street and for a part of the distance on Nebraska street. In the year 1905 the city by ordinance changed the grade of the streets in question by lowering the same--varying from 3.65 to 11.55 feet--and the work of making the physical change was at once entered upon and accomplished. This action to recover damages followed.

The defendant city does not question on this appeal its liability for the legal damage actually sustained by plaintiff growing out of such change in grade, if any there was. The contentions for error are based wholly on rulings on evidence offered in proof of damage, and on the instruction given the jury by the court on the subject of the measure of damage. There is a further contention that the verdict returned, and on which the judgment is based, was excessive. The right to recover damages in such cases is purely statutory. And it is the statute (Code, § 785) that “when any city or town shall have established the grade of any street or alley, and any person shall have made improvements on the same, or lots abutting thereon, according to the established grade thereof, and such grade shall thereafter be altered in such a manner as to damage, injure or diminish the value of such property so improved, said city or town shall pay to the owner of such property the amount of such damage or injury.” On the question of the measure of damage to be applied in such cases, we have repeatedly said that it is the difference in the value of the property as it was just before the change and as it was just after, so far as such difference is due to the change. Stewart v. Council Bluffs, 84 Iowa, 61, 50 N. W. 219. It will be observed that the statute is that damages are recoverable only where improvements have been made according to the initial grade established for the street; and it has been held that property is so improved within the meaning of the statute “whenever it is so improved that it can be comfortably and conveniently used for the purpose to which it is devoted, while a street upon which it abuts is maintained at that grade.” Conklin v. Keokuk, 73 Iowa, 343, 35 N. W. 444. In getting at the matter of damage, it is proper of course, to take the opinions of witnesses as to the value of the property in question before and after the change of grade is effected. Dalzell v. Davenport, 12 Iowa, 437. So, also, the cost of putting the property in the same relative condition with respect to the new grade is admissible as bearing on the difference in value brought about by the charge. Stewart v. Council Bluffs, supra; Richardson v. Webster City, 111 Iowa, 427, 82 N. W. 920.

With these rules in mind, we may now go to the specific matters of error urged upon our attention. The city engineer, a witness for plaintiff, was asked on direct examination how the grade on Ninth street and Nebraska street named under the grade of 1871 compared with the grade on other streets in the questions. The materiality of this evidence is not apparent, and the objection thereto should have been sustained. Another witness for plaintiff was allowed to testify to the fact that, following the grade of 1871, a row of maple trees was set out in the parking along Ninth street, and as to the condition of such trees at the time they were removed in the work of effecting the physical change in the street to conform to the 1905 grade. This is complained of as error. In view of the state of the record as we have it before us, we think the complaint warranted. There is no evidence showing that the trees were set out in conformity with the grade of 1871; and it cannot be presumed that they were in the face of the fact--seemingly acquiesced in--that the physical surface of the street was never reduced to conform with the level of that grade. For all that appears, therefore, a removal of the trees might have been necessary to a reduction of the street surface to the level of the initial grade. And, accepting such as the case, it is well settled that there could be no recoverable damage. Farmer v. Cedar Rapids, 116 Iowa, 322, 89 N. W. 1105. In saying this, however, we are not to be understood as holding that in a proper case evidence may not be introduced showing that trees planted and growing in a grade parking have been destroyed in the course of making the physical change incident to the establishment of a new grade for a street. Such evidence may be competent as tending to show that improvements had been made in view of and conforming to the initial grade. So, also, as we think, it may be introduced as bearing on the condition and value of the abutting property just before and just after the making...