Sallden v. City of Little Falls
| Decision Date | 15 November 1907 |
| Docket Number | 15,380 - (47) |
| Citation | 113 N.W. 884,102 Minn. 358 |
| Parties | HANNAH SALLDEN v. CITY OF LITTLE FALLS |
| Court | Minnesota Supreme Court |
Action in the district court for Morrison county to recover $2,000 damages to plaintiff's property caused by establishing a grade in one of the streets of the city of Little Falls abutting plaintiff's property. The case was tried before Baxter, J., and a jury which found a verdict in favor of plaintiff for $851.33. From an order denying a motion for a new trial, defendant appealed. Reversed.
Eminent Domain -- Injury Caused by Street Grade.
Under section 13 of article 1 of the state constitution, as amended in 1896, providing that private property shall not be taken or "damaged" for public use without just compensation first paid or secured, it is held that a property owner in a municipal corporation is entitled to compensation for injuries occasioned to his property by reason of the first establishment of a street grade by the municipality and the improvement of the streets in conformity therewith.
Measure of Damages.
The measure of damages in such case is the difference in value of the property alleged to have been injured before and after the acts of the municipality in grading the street, except where the cost of restoring the property to its original condition with reference to the street is less than the difference in value, in which case the cost of restoration is the measure of the property owner's relief.
Evidence.
The evidence in this case examined, and held insufficient to justify recovery by plaintiff within this rule.
Motion for New Trial.
A motion for judgment notwithstanding the verdict, made at the conclusion of the trial and thereafter denied by the court does not bar a subsequent motion for a new trial upon a settled case, if seasonably made.
Donat Trettel, Louis W. Vasaly, and Arthur P. Blanchard, for appellant.
Elmer A. Kling, for respondent.
Action to recover damages alleged to have resulted to plaintiff's property from the acts of defendant in grading one of its streets in the city of Little Falls. Plaintiff had a verdict, and defendant appealed from an order denying a new trial.
The facts, briefly stated, are as follows: Some time prior to the acts complained of by plaintiff, the city formally established the grade of the street in question, and the officers thereof leveled and graded the same in conformity therewith, resulting in raising the street in front of plaintiff's property to a height of about three feet. This was the first grade ever established by the city. The assignments of error present two questions for consideration (1) Whether a property owner is entitled to damages from the municipality resulting from the first grading of a public street; and (2) whether the record presents any evidence of injury to plaintiff's property within the rule of damages applicable to such cases.
1. At common law a municipal corporation, clothed with power to grade and improve its streets, is not liable to property owners for consequential damages necessarily resulting from the action of its officers in establishing street grades and improving them in conformity therewith, except in those cases where adjoining property is in fact invaded or the work of improvement has been negligently performed. Lee v. City of Minneapolis, 22 Minn. 13; Alden v. Minneapolis, 24 Minn. 254. The theory of the law in such cases is that persons owning property within the municipality are deemed to have acquired it subject to the reserved right of the authorities to make such improvements in the streets thereof as public interests may from time to time require, and injuries necessarily resulting therefrom the common law declares damnum absque injuria. But the rule has been changed in many of the states by statutory and constitutional provisions to the effect that private property shall not be taken "or damaged" for public use without just compensation first paid or secured. Under such provisions the authorities are nearly uniform in holding the municipality liable for consequential damages caused by a change from an established grade; i.e., where a grade is once established by public authority, and private property is improved with reference thereto, a subsequent alteration or change in that grade to the damage of abutting property renders the municipality liable. Dickerman v. City of Duluth, 88 Minn. 288, 92 N.W. 1119, and cases cited.
But upon the question here before the court, namely, whether there is a liability for damages resulting from the first establishment of the grade and improvement in conformity therewith, the authorities are not harmonious. A few courts apply the common-law rule to the first grade and improvement, and limit the liability of the municipality to cases where injury and damage result from a change of a previously established grade with reference to which private property was improved. The question presented in this case is whether, under the provisions of our amended constitution, the defendant is liable in this action; the injury complained of having resulted from the first establishment of a grade. Originally, section 13 of article 1 of our constitution provided, in substance and effect, that private property should not be taken for public use without just compensation being made therefor. It was amended in 1896, so that it now provides that private property shall not be taken "or damaged" for public use without just compensation being paid. It was held in the Dickerman case, just cited, that the effect of this amendment was to abrogate the common-law rule that there was no liability in such cases, at least so far as the change from an established grade is concerned.
A majority of the courts discover no reason for a distinction between the first and subsequent grades, and give force and effect to constitutional provisions such as ours by holding that liability exists for injuries resulting from the first as well as from a change of a previously established, grade. A careful examination of the subject suggests no valid legal reason for a distinction between the two classes of cases. Private property may be as much injured or damaged by the first improvement as by the second, and unless an exception in harmony with the common-law rule is to be read into the constitution where the first improvement is involved, it must be held that liability exists in such cases. The change in our constitution by which compensation is secured where private property is taken "or damaged" for a public use was for the purpose of awarding appropriate relief in all instances where public use...
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