Selden v. City of Jacksonville

• Decision Date: 22 December 1891
• Citation: 28 Fla. 558,10 So. 457
• Parties: SELDEN et al. v. CITY OF JACKSONVILLE.
• Court: Florida Supreme Court

10 So. 457

28 Fla. 558

SELDEN et al. v. CITY OF JACKSONVILLE.

Florida Supreme Court

December 22, 1891

Appeal from circuit court, Duval county; JAMES M. BAKER, Judge.

Suit by George Selden and others for an injunction to restrain the city of Jacksonville from erecting a viaduct for the purpose of changing the grade of a certain street. From an order denying the application plaintiffs appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. The guaranty of a constitution that private property shall not be 'taken' or 'appropriated' without compensation does not extend to mere consequential damages resulting to property abutting on a street from a change of grade of the street, or other improvement thereof not constituting a diversion of the street from street purposes by municipal authorities acting within the scope of their charter powers, but only to a trespass upon or physical invasion of the abutting property.

2. The provisions of the constitution of 1885, that private property shall not be 'taken' without just compensation (section 12, Declaration of Rights;) that the legislature may provide for the drainage of the land of one person over or through that of another upon just compensation therefor to the owner of the land over which such drainage is had; and that no private property nor right of way shall be 'appropriated' to the use of any corporation or individual until full compensation shall first be made to the owner, or first secured to him by deposit of money, such compensation to be irrespective of any benefit from any improvement proposed by such corporation or individual (sections 28, 29, art. 16,)--do not of themselves render a municipality liable for mere consequential damages resulting to property abutting on a street from the lawful change of grade or other authorized improvement of the street by the municipality.

3. Upon the voluntary dedication of land to the purposes of a street it becomes, to the extent that it is necessary to be used for a street, the property of the people of the state; and the dedication carries with it the continuing power to change its grade, or otherwise improve it, in so far as such improvements are for street pur poses. This power may be delegated by the legislature to a municipality as one of its governmental agencies, and to the exercise of these powers the fee of the owners of abutting lots in the street to its center is at all times subject.

4. There are incident to the ownership of property abutting on a street certain property rights which the public generally do not possess, viz., the right of egress and ingress from and to the lot by the way of the street, and of light and air which the street affords. These incidental rights are, under a constitutional prohibition simply against the 'taking' or 'appropriation' of private property, subordinate of the right of the state, or of any duly-authorized governmental agency acting for it, to alter a grade or otherwise improve a street for street purposes. The original and all subsequent purchasers of abutting lots take with the implied understanding that the public shall have the right to improve or alter the street, so far as may be necessary for its use as a street, and that they can sustain no claim for damages resulting to their lots or property from the improvement or destruction of such incidental rights as a mere consequence from the lawful use or improvement of the street as a highway.

5. The erection by a municipal government within the limits of a street, and for street purposes, and under street conditions justifying it, of a viaduct for the purpose of changing the grade of the street, and in the exercise of its power to change such grades, is not a 'taking' or 'appropriation' of private property, within the constitutional guaranty against such taking or appropriation, even though the abutting owners' rights of ingress, egress, light, and air are destroyed thereby; nor is this result of law changed by the mere fact that other corporate bodies than the municipality have contributed to the expense of the erection of the viaduct. Whether, however, it would not be a diversion of the street from the street purposes, and a 'taking' and 'appropriation' for which compensation must be made, if the necessity for the viaduct was created by railroad tracks crossing the street, not presented.

COUNSEL

A. W. Cockrell & Son, for appellants.

W. B. Young and J. M. Baris, for appellee.

OPINION

RANEY C.J.

The last clause in the twelfth section of the declaration of rights of our constitution is: 'Nor shall private property be taken without just compensation.' This is not, however, the only provision of that instrument relating to the exercise of the right of eminent domain. There are two sections in the 'Miscellaneous Provisions,' or sixteenth article, which read as follows:

'Sec. 28. The legislature may provide for the drainage of the land of one person over or through that of another, upon just compensation therefor to the owner of the land over which such drainage is had.

'Sec. 29. No private property nor right of way shall be appropriated to the use of any corporation or individual until full compensation shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be provided by law.'

It cannot be denied that the almost uniform course of decision has been that a municipal government was not liable for any consequential damages resulting to dwelling lots from an authorized or lawful change of grade of the street by the municipal authorities, where the constitutional provision obtaining has been like that of our declaration of rights: 'Nor shall private property be taken without just compensation.' Such seems to have been this court's understanding of the law 20 years ago, as is shown by Dorman v. City of Jacksonville, 13 Fla. 538.

The meaning given by the courts and commentators to the words 'taken' or 'appropriated,' as used in such a provision, is that there must be a trespass upon or a physical invasion of the abutting property, to bring municipal authorities within the constitutional prohibition, so long as such authorities keep within the scope of their powers in using or improving the street. If they do no illegal act, as by creating a nuisance, or do not appropriate the street to other than street purposes, or do not invade, or do physical injury to, the abutting property, there is, in the absence of negligence, or of the want of due skill and care in making improvements, (which negligence or want of care or skill may, of itself, be a ground of corporate responsibility for damages,) no liability to the owners of such property for any damage resulting from a change of grade or other improvement in the street made by the municipal powers for the convenience or benefit of the public in using the highway as such. The voluntary dedication of the street as a highway creates certain rights in the public; the land so dedicated becomes, to the extent that it is necessary to be used for a street, the property of the people of the state; and the dedication of it to such purpose carries in this country, as well as in England, the continuing power to change its grade or otherwise improve it, in so far as such improvements are for street purposes. This power may be delegated by the legislature to a municipality as one of its governmental agencies, and to the exercise of these powers the fee of the abutting owner in the street to its center is at all times subject, in the manner or to the extent indicated above, under a constitutional provision like that in our bill of rights.

In some cases holding these views there has been an omission, at least, to notice any distinction between the rights of an abutting owner, as such, and the public generally, in or as to the streets; but there can be no doubt that there is a substantial and clearly-defined difference. There is incident to abutting property, or its ownership, even where the abutter's fee or title does not extend to the middle of the street, but only to its boundary, certain property rights which the public generally do not possess. They are the right of egress and ingress from and to the lot by the way of the street, and the right of light and air which the street affords. Viewing property to be not the mere corporal subject of ownership, but as being all the rights legally incidental to the ownership of such subject, which rights are generally said to be those of user, exclusion, and disposition, or the right to use, possess, and dispose of, (Lewis, Em. Dom. §§ 54, 55; Dill Mun. Corp. § 587b; Cooley, Const. Lim. 675, 676,) we are satisfied that the rights just mentioned are within the meaning of the word 'property,' as it is used in this constitutional provision. These incidental rights of property are, under a constitutional guaranty, simply against the 'taking' or 'appropriation' of property, subordinate to the right of the state, or any duly-authorized governmental agency acting for it, to alter the grade or otherwise improve the streets for street purposes. An original purchaser of an abutting lot, and all subsequent purchasers, take with the implied understanding, or as tacitly agreeing, that the public shall have the right to thus improve or alter the street so far as may be necessary for its use as a street, and that they can sustain no claim for damages resulting to their lots or property from the impairment or destruction of such incidental rights, as a mere consequence from the use or improvement of the streets as...