Robinson v. Mayor & Aldermen of City of Vicksburg

• Decision Date: 24 April 1911
• Docket Number: 14,793
• Court: Mississippi Supreme Court
• Parties: BARTON J. ROBINSON v. MAYOR AND ALDERMEN OF CITY OF VICKSBURG

54 So. 858

99 Miss. 439

BARTON J. ROBINSON v. MAYOR AND ALDERMEN OF CITY OF VICKSBURG

No. 14,793

Supreme Court of Mississippi

April 24, 1911

APPEAL from circuit court of Warren county, HON. H. C. MOUNGER Judge.

Suit by Barton J. Robinson against the City of Vicksburg. From a judgment for plaintiff he appeals and the city prosecutes a cross appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Brunini & Hirsch, for appellant.

The court refused appellant instruction No. 13 directing the jury to find for the plaintiff, and submitted the question of liability to the jury. We submit that this was error under the facts in this case. There was no conflict in the testimony with reference to the raise of the grade of the street, and there was no testimony in conflict with the appellant's testimony that his property had been damaged.

Appellant was therefore, entitled to have the court instruct the jury to find for him.

The court refused appellant's instruction No. 11. It was extremely important that the appellant should have an instruction which defined the grade of the street, for the reason that there was testimony to the effect that there were washes in the street; that the street sloped from one side to the other, etc., and especially in view of the fact that instructions Nos. 4 and 5 for the appellee were given to the jury.

Instruction No. 11 is almost in the exact words of the language of this court in the case of City of Jackson v. Williams, 2 Miss. 319.

The lower court erred in admitting over the protest of appellant the fact that plaintiff had signed the petition requesting the appellee to pave Mulberry street; in likewise admitting the petition so signed; in likewise admitting article 25, of section 28, of the city charter; in likewise admitting the ordinance of the city, providing for the pavement.

At the conclusion of the testimony in the case, the appellant again moved the court to exclude the petition for the paving of Mulberry street, and also the ordinance passed thereon by appellee. The court denied the motion.

In other words: The court permitted the jury to consider the fact that appellant had signed the petition to pave the street; the ordinance adopted thereon, and the charter with reference thereto. Appellee offered this testimony as a complete defense to the action of appellant.

Appellant asked the court to give it instruction No. 12, which told the jury that it should disregard the fact that appellant signed the petition requesting the appellee to pave Mulberry street in front of plaintiff's property; and the defendant asked the court to give its instruction No. 3, which announces the opposite view of the law. The lower court responded to the requests of appellant and appellee, that he wanted to be fair about the matter, and would give both instructions. The attention of the court was immediately called to the fact that these two instructions were directly in conflict with one another, and the court then remarked that he would give neither one of them, and adhered to this ruling.

So the case went to the jury, neither upon the theory of the appellant, nor that of the appellee. The jury, however, were permitted, by the ruling of the court to consider the fact that appellant had signed the petition, and they were left to determine what effect the signing of the petition by the appellant should have by way of defense.

To pave a street with brick or other modern paving material, where the grade of the street is not to be changed, the surface of the grade of the street must be excavated to the thickness of the depth of the material and foundation. First goes a six-inch foundation of cement concrete; then a cushion of sand one and one-half inches in thickness, and upon the sand cushion are placed the material, in this instance, brick on edge.

All that is said with reference to the grade in the charter provision and the petition is:

"The cost of the grading of such work, and paving of the intersections, together with one-third of the cost of the remainder of the work to be borne by the city."

Now nothing is said about changing the grade. What is understood by grading a street? Simply to bring it to grade; to bring it to the surface or to grade line.

"The ordinary meaning of the term 'grade' is the amount or difference between the 'grade line' and the level or horizontal line, and to grade a street is to bring the surface of the street to grade line. The term includes excavation and filling, so as to make the surface conform to the grade line." Davee v. Saginaw (Mich.), 32 N.W. 919.

In grading a street or roadway, where no change in the grade is to be made, it is always necessary to fill in the ruts or washes, or other uneven places. This is unquestionably included in the term "grade."

"Particular complaint is made that there was no evidence that the original grade of the street was 'well settled,' whereas, the surface was so uneven as to constitute no grade at all. The description of its character given by these words is quite immaterial. The term 'grade' is used in the statute, not to signify a level precisely established by mathematical points and lines, but the surface of the highways as it in fact exists. Any elevation or depression of this surface by the municipal authorities, resulting from an attempt to establish a grade, is a change of grade, which if damages result, will support an action. There is no error. The other judges concurred." McGar v. Borough of Bristol (Conn.), 42 A. 1002.

As a future step in the argument, we wish to call the court's attention to the fact that the testimony of appellant almost demonstrated, if it did not demonstrate, that his damages were in the neighborhood of three thousand dollars. The testimony was there that changes were necessary to be made in order to conduct his business in his shop; that the second story of the building could not be used for the purpose for which it was designed without change; that in making the change, his machines, etc. , had to be elevated, and that he had already gone to some temporary expense in protecting his building from the fill, etc. There was no testimony to the effect that the changes would not have to be made, nor was there any conflict as to the cost of the changes made necessary by the raise of the grade in front of appellant's property.

We contend most earnestly, that if the court had given instruction 13, directing the jury to find for the appellant that appellant would have recovered at least three times as much damages as he did; and that even though the court had refused to instruct for appellant, and had excluded the petition for paving, that the verdict for appellant would have been over three times as large.

We are aware of the fact that by rendering the verdict in favor of the appellant, that the jury necessarily found the question of liability in favor of appellant, but we refuse to shut or eyes to the fact that the verdict was cut down by reason of the admission of the petition for the payment, which appellant signed, or by reason of the fact that the court refused to instruct peremptorily for the appellant.

We dare say that there is not a lawyer practicing at the bar in the state of Mississippi, who has had any court experience whatever, who does not know it to be an indisputable fact that a jury will not first determine the question of liability and then determine the question of damages. They will, invariably, consider both, and where the liability is not clear, or there is a controversy over it, they will cut down the verdict.

Anderson & Voller, for appellee.

We think that the mere statement of the proposition that appellant, by signing the petition under the circumstances indicated, is estopped to claim the damages demanded, is sufficient, even without citing authorities. However, we will not content ourselves with that, and now call the court's attention to the propositions of law relied on to support our contention.

The Missouri court, as far back as Nov. 15th, 1886, announced the doctrine as follows:

"A property owner, who has consented to the change of grade of a street, by joining in a petition to the city council to have such change made, is equitably estopped from setting up any claim for damages resulting from such change."

And this is so, even though "the petition was not signed by property holders owning a majority of front feet of property fronting on the part of the street to be improved." Cross v. City of Kansas, 1 S.W. 749.

The court in this case cites with approval and quotes from the case of City of Burlington v. Gilbert, 31 Ia. 357, at p. 367.

The Texas court on April 4th, 1894, announced the same doctrine on the following statement of facts:

"Upon an examination of the evidence contained in the statement of facts, we find that it was proven without controversy that prior to the construction and establishment of the grade upon Maple street, plaintiff, joining with a large number of others owning property abutting upon said street, petitioned the council of the city of Texarkana, in writing, to establish and construct a grade upon Maple street, presenting strong and urgent reasons for the prayer of the petitioners."

Damages resulted from the flow of water, and this suit was brought; thereupon the court used the following language:

"It would hardly be reasonable to give the law a construction which would authorize one to influence a city council by petition to fix and construct a grade upon a street, and then permit him to recover damages for injuries which are incident to the proper construction of such work. We think it would be more in harmony with good conscience and sound reason to treat such an act as a...