Rutherford v. City of Williamson
| Decision Date | 27 February 1912 |
| Citation | 74 S.E. 682,70 W.Va. 402 |
| Parties | RUTHERFORD v. CITY OF WILLIAMSON. |
| Court | West Virginia Supreme Court |
Submitted June 3, 1911.
Rehearing Denied April 26, 1912.
Syllabus by the Court.
A bill of exceptions is sufficiently identified if be signed and certified by the trial judge, and designated in his certificate by the words or numbers placed upon it for identification, and be described in the same manner in the order making it a part of the record.
If a municipality lay out and open its streets to public use on the natural grade, and permit lot owners to build on their lots abutting thereon, with reference to such natural grade it becomes liable in damages to such lot owners for injury resulting from a subsequent change in the grade line.
A municipality acts through its authorized officers, and is not liable for the acts of such of its officers as have no authority in the premises.
A city whose council is given the power and authority, by its charter, to "open, alter, grade and keep in good repair [its] roads, streets, and alleys, *** and to order the pavement, sidewalk, *** to be kept in good order," is not liable to a lot owner for the unauthorized act of its mayor in causing such lot owner to lay a sidewalk along the street in front of his lot in such way as to injure his lot.
The true measure of damages to a lot abutting on a street occasioned by a change in the grade line of the street, is the difference between the value of the lot immediately before and its value immediately after the street improvement, less any special or peculiar benefits to the lot because of the improvement of the street, but leaving out of account such general benefits as accrue to it in common with other property similarly situated.
(Additional Syllabus by Editorial Staff.)
Where the excavation in a street for a sidewalk made it necessary to build a retaining wall to preserve an adjoining owner's property and to protect it from further injury, it is proper to take into consideration the reasonable cost of building the wall in estimating damages.
In an action against a city for damages from the change of grade of a street, it was not error to refuse to permit counsel for the city, on cross-examining witnesses in relation to the matter of damages, to ask them if, in making their estimate, they took into account any special benefits accruing to plaintiff's property, where there was no evidence of such benefits shown, being general in their nature.
Error to Circuit Court, Mingo County.
Action by A. G. Rutherford against the City of Williamson. Judgment for plaintiff, and defendant brings error. Reversed, and remanded for new trial.
G. R. C. Wiles and Campbell, Brown & Davis, for plaintiff in error.
Sheppard, Goodykoontz & Scherr, for defendant in error.
A. G. Rutherford recovered a judgment for $275 against the city of Williamson, in the circuit court of Mingo county, as damages for an alleged injury to his real estate, occasioned by excavations for the laying of sidewalks on a level with the grade line of two streets abutting thereon, and the city has brought the case here on writ of error.
The motion to dismiss the writ, for the alleged reason that the bill of exceptions which embodies the evidence was not properly certified by the judge and identified by the order making it a part of the record, must be overruled. There are a number of bills of exceptions, and they are all identified in the order by numbers, as No. 1, No. 2, etc. No. 1 embodies the evidence. It begins on page 14 of the record and ends on page 186. The judge signs a certificate, at the conclusion of it, stating that it contains all the evidence, and identifies it as "bill of exceptions No. 17." The vacation order, making it a part of the record, identifies it in the same manner. This makes its identity reasonably certain, which is all that the law requires. Duckworth v. Stalnaker, 68 W.Va. 197, 69 S.E. 850 (pt. 13, Syl.); Marshall v. Stalnaker et al., 74 S.E. 48, recently decided by this court, but not yet officially reported.
Plaintiff's lot is situated at the corner of Second avenue and Dickinson street, which were opened and used as public streets, on the natural grade line, for a number of years. Plaintiff had built his house with reference to the natural grade. His declaration avers that the city thereafter lowered the natural grade line of these two streets, and hereby damaged his lot. The declaration states a good cause of action, and the demurrer was properly overruled. Harman v. Bluefield, 73 S.E. 296; Blair v. Charleston, 43 W.Va. 62, 26 S.E. 341, 35 L. R. A. 852, 64 Am. St. Rep. 837.
But counsel for the city insist that it has never changed the grade line on Dickinson street, and has not established any grade line for that street. The majority of plaintiff's evidence proves that his chief cause of complaint is on account of an excavation along Dickinson street, which he made himself, for the purpose of laying a public, cement sidewalk. This excavation was from four to five feet deep in places, and made it necessary for plaintiff to build a retaining wall to protect his lot. But if the city did not fix a grade line, and did not direct plaintiff to build the sidewalk, it ought not to be held liable. The proof is that the mayor employed an engineer to run a line on Dickinson street, and then told plaintiff to lay the sidewalk by the engineer's stakes, which plaintiff did. But the engineer was not the city engineer; nor is there any proof that the mayor was authorized to employ him, or that the council adopted his survey as the grade line, or that he ever reported his work to them. The mayor acted beyond the scope of his authority, and, the council not having ratified his acts, the city cannot be held liable. A municipality acts through its authorized officers; and it cannot be held liable for the acts of those who have no authority in the premises. In Gardner v. City of St. Joseph, 96 Mo.App. 657, 71 S.W. 63, the court says: "The city can only be held responsible for the acts of its officers and agents in changing the grade of a street when the change is authorized by ordinance." To the same effect is Page v. Belvin, 88 Va. 985, 14 S.E. 843.
By its charter, the council of the city of Williamson is given power to "lay off, vacate, close, open, alter, grade and keep in good repair the roads, streets, and alleys ***; to regulate the width of the pavements and sidewalks on the streets and alleys and to order the pavement, sidewalk, *** to be kept in good order," etc. The common council is the legislative body of the city, and to it the Legislature has delegated the authority and power to determine the locations and grades of its streets, and to keep them in repair. This authority, being delegated to the council cannot be, by it, delegated to another. Dillon, Munic. Corp. (5th Ed.) § 244; 2 Abbott, Munic. Corp. § 517; Page v. Belvin, supra; Cross v. Morristown, 18 N. J. Eq. 305; Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96; Mayor v. Porter, 18 Md. 284, 79 Am. Dec. 686; Ruggles v. Collier, 43 Mo. 353; Thomson v. Booneville, 61 Mo. 282; Smith v. Stephens, 10 Wall. 321, 19 L.Ed. 933. This does not mean, however, that a city council, having control of the streets, cannot delegate to some one else, or to a committee of its own members, the performance of merely ministerial duties, such, for instance, as making surveys, superintending the work of construction, and the like. But it cannot delegate its authority where discretion and judgment are to be exercised, as in the case of opening a public street, or adopting a grade line for it. In respect to these things, it is invested with a legislative discretion; and the...
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