Searle v. City of Lead

Decision Date20 November 1897
Citation73 N.W. 101,10 S.D. 312
CourtSouth Dakota Supreme Court

Appeal from circuit court, Lawrence county; Adoniram J. Plowman Judge.

Bill for injunction brought by Julia K. Searle against the city of Lead. From an order granting the injunction, defendant appeals. Affirmed.

H. E Dewey, for appellant. McLaughlin & McLaughlin, for respondent.


This is an appeal from an order granting a preliminary injunction. The plaintiff, claiming to be the owner of certain town lots in Lead city, fronting upon Mill street, in said city, upon which she had erected a house and made other improvements instituted this action to restrain the city from changing the grade of said street, which she avers the city was threatening to do, and which change of grade, she avers, would cause damage to her property in a sum of, at least, $1,000, until such damages shall be ascertained and paid. The court made the order restraining the city from grading in front of her premises, but permitted it to complete a sidewalk then partially completed.

The errors assigned upon which the city relies for a reversal of the order are, in substance, as follows: (1) That the complaint does not state facts sufficient to constitute a cause of action for an injunction; (2) that the court erred in making said order after the defendant had presented its proposed answer, in which it denied that plaintiff was entitled to any compensation as in her complaint alleged, or that she would sustain any damage; (3) that the court erred in making the order, having dissolved the restraining order as to the construction of the sidewalk; (4) that the court erred, for the reason that the complaint shows upon its face that the only change of grade threatened was to bring the street to the established grade for the first time; (5) because the complaint contains no allegation that plaintiff would sustain irreparable injury, or that the defendant was not solvent, and fully able to pay any damages plaintiff might sustain by reason of such threatened change of grade.

The complaint states, in effect, that the defendant (appellant here) is a municipal corporation; that Mill street is one of the streets of the city; that plaintiff (respondent here) is the owner of certain lots (describing them) fronting upon said street; that she had erected a house and made other improvements upon said lots on the "natural grade" of said street; and that the defendant threatens to change the grade of said street by raising the same about 3 1/2 feet, thereby leaving the house and other improvements of said plaintiff that depth below the grade, causing damage to her property fronting on said street of, at least, $1,000; and that said defendant has not compensated nor offered to compensate her for the damage so threatened. She therefore prays that said defendant be enjoined from in any manner changing the grade of said street until her damages have been ascertained and paid. The defendant filed an answer, which will be referred to further on in this opinion. A hearing was had, and the trial court made the order appealed from.

The theory, evidently, upon which the complaint was drawn, and upon which the court below granted the injunction, was that, under the provisions of the constitution of this state, it was the duty of the defendant to first proceed to ascertain the damage resulting to plaintiff's property by the change of grade or proposed change of grade, and pay or tender the same, before the street could be lawfully graded. The section of the constitution relied on reads as follows: "Private property shall not be taken for public use or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained and before possession is taken." Const. art. 6, § 13. In this connection it may be proper to notice the act of the legislature of 1891, entitled "An act to provide for the assessment by jury of just compensation for private property taken for public use or damaged," approved March 7, 1891, and which constitutes chapter 94, Laws 1891. The first section of this act reads as follows: "In all cases when municipal or other corporations, or individuals, invested with the privilege of taking private property for public use or damaging the same in making, constructing or repairing any work or improvement allowed by law, shall determine to exercise such privilege, it shall be the duty of such corporation or individual to file a petition in the circuit court of the county in which the property to be taken or damaged is situated praying that the just compensation to be made for such property, may be ascertained by a jury." The sections following provide specially the method of proceeding, impaneling a jury, etc. This act seems to have been adopted to provide a summary proceeding for carrying into effect the constitutional provision. It may be assumed from the statements in the complaint that Mill street is one of the streets of Lead city, over which the defendant has the right to exercise municipal control, by grading, keeping the same in repair, etc., and in which the public has the usual easements incident to highways in incorporated towns and cities. It may also be assumed from the statements in the complaint that Mill street had not been previously graded or the grade established prior to the erection of plaintiff's buildings, and that the change of grade threatened was from the natural grade to the grade established by an ordinance of the city. It does not appear from the complaint whether the fee to the soil of Mill street is in the city or the owners of lots fronting thereon; but, in the view we take of the case, this is not material, as the authority of the municipality over the same and the rights of fronting owners are practically the same as to the liability of the one to pay and the right of the other to recover damages.

The question as to whether or not the facts stated in the complaint entitled the plaintiff to an injunction is an important one, and has not been heretofore passed upon by this court. In involves a construction of the constitutional provision, and the effect of including the term "or damaged" in our constitution, and the duties and powers of municipal corporations thereunder. It is a general rule that compensation for private property, taken for public use shall be ascertained and paid before the property is taken; and, in states where such provisions exist, it has been the rule to restrain the taking until after the ascertainment and payment of the compensation. McElroy v. Kansas City, 21 F. 257. It is also true, as a general rule, that in states where no constitutional provision exists similar to the one in this state, and in which the term "damaged" is not included, if no property is in fact taken, the incidental damages which may result to the owner of abutting property give no right of action to the owner, and furnish no basis for interference by the courts or otherwise. We say as a general rule, for courts have held in a class of cases that where the injury was in some manner direct, and the estate actually invaded by superinduced additions of water, earth, sand, or other matter or artificial structures placed upon it, so as effectually to destroy or impair its usefulness, it is a "taking," within the meaning of the constitution. Vanderlip v. City of Grand Rapids (Mich.) 41 N.W. 677. The reports disclose many cases under the former system where streets were cut down or filled to such a depth as to render the property of the abutting owner comparatively worthless, and yet such owner was without remedy. In other words, the private property of such owner was, in effect, taken for the use or benefit of the public, without any compensation made to the owner. Most of these decisions were based largely upon the decision of the supreme court of Massachusetts in Callender v. Marsh, 1 Pick. 417, which was a street grade case, in which a deep cut had been made. But in that case the learned chief justice who wrote the opinion fully recognized the injustice of the old rule as applied to the facts in that case. He says: "These are cases, without doubt, where the...

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