Smith v. City Council of Alexandria

• Decision Date: 15 April 1880
• Citation: 74 Va. 208
• Parties: SMITH v. THE CITY COUNCIL OF ALEXANDRIA.
• Court: Virginia Supreme Court

74 Va. 208

SMITH v. THE CITY COUNCIL OF ALEXANDRIA.

Supreme Court of Appeals of Virginia.

April 15, 1880

If a municipal corporation in improving its streets, fills up a street and does it in such way that the water which before had been carried off by gutters, is thrown back upon an adjoining lot, the corporation will be liable for the damage to the lot, if by proper care and means it might have been prevented.

This was an action on the case in the corporation court of Alexandria, brought by Michael Smith against the City Council of Alexandria, to recover damages for injury done to a lot owned by the plaintiff, by the filling up a street of the city. The declaration is as follows:

Michael Smith complains of the City Council of Alexandria, a body politic and corporate under the laws of Virginia, defendant who has been duly summoned to answer the plaintiff of a plea of trespass on the case. For that, whereas, the plaintiff, on the 1st day of September, 1875, was and is now possessed of a certain lot of ground on the northeast corner of the intersection of Queen and Patrick streets, fronting on Patrick street fifty feet and on Queen street _____ feet, in the city of Alexandria, aforesaid, the said lot of ground then and now being enclosed by a plank fence, a part thereof occupied by buildings and used by the plaintiff for a coal and wood-yard and for other purposes; and the plaintiff avers that up to the time of the act, or acts, of the defendant its officers and agents, herein complained of, there was a ditch, or gutter, on the north side of Queen street, in front of said lot and also on the east side of Patrick street in front of the lot aforesaid, which said ditches or gutters conveyed all the water that flowed by, from and over the lot aforesaid, to the intersection of the streets aforesaid and thence, by means of other ditches and gutters, it passed on and into the proper channel and was carried off. And the plaintiff further avers that the defendant, its officers and agents, on the day and year aforesaid, negligently carelessly, wrongfully and injuriously filled up the ditches aforesaid and filled in the said streets with dirt and earth & c., and thereby elevated the grade thereof several feet, to-wit: three feet in front of the said lot, without cutting a ditch, constructing a drain, or leaving an opening in the embankment of the said streets, thus made, for the water to flow on and escape, as it had hitherto done; and because of the filling up of said ditches and streets as aforesaid, all the water was stopped and thrown back on the plaintiff's lot aforesaid, and that by reason and in consequence thereof, from the 4th day of November, 1875, until the institution of this suit, the lot aforesaid was covered with water to the depth of eight inches, the plaintiff was deprived of the use and enjoyment thereof, the plaintiff's business, for which it was used, was interrupted and injured, and the plaintiff, to save his property thereon, was put to great labor and expense, and in doing so, the health of the plaintiff was greatly prejudiced.

Wherefore the said plaintiff saith that he is injured, and has sustained damage to the amount of $500, and therefore he brings suit.

The defendant demurred to the declaration; and the court sustained the demurrer. And thereupon Smith applied to this court for a writ of error; which was allowed.

John W. Johnson, for the appellant.

C. E. Stuart, for the appellee.

OPINION

BURKS, J.

A writ of error to the judgment below sustaining a demurrer of the defendants to the plaintiff's declaration, presents the only question for decision here, to-wit, whether, the material allegations being admitted by the demurrer to be true, the declaration states a good cause of action.

The suit was brought to recover compensation for damage by water to the plaintiff's lot in the city of Alexandria, occasioned, as alleged, by the grading of certain streets in the city by the defendants, the City Council.

Among the powers expressly conferred by the charter upon the City Council is the power " to pave, make and repair the streets and highways, * * * whenever they shall deem it proper, * * * to open, extend, regulate, pave and improve the streets within the limits of the city; " and they are required " to make to the person or persons who may be injured by such opening or extension just and adequate compensation out of the funds of the corporation." Acts of 1870-71, ch. 73, § 14. No compensation is provided for any persons sustaining damage by the exercise of the powers granted, except the persons just mentioned, for whom provision was necessary under our Constitution, which forbids the passage of any law by the general assembly, " whereby private property shall be taken for public uses without just compensation." Con. of Va., Art. 5, § 14.

The validity of this legislative act, similar to the charters of most of our cities and towns in respect to streets, has not been and cannot be questioned, and the City Council having full discretionary power thereunder to improve the streets of the city by grading them, the due exercise of the power cannot, in the nature of things, be wrongful, in a legal point of view; and hence, although it may be attended or followed by damage, as a necessary incident, to the owners of adjacent lots, such damage is what is known in the law as damnum absque injuria, and imposes no legal liability.

A distinguished jurist, who has given special attention to the law of municipal corporations, in his valuable treatise expresses the principle thus: " In view of the nature of streets (explained in a former chapter), and of that control over them which of right belongs to the State, and of the nature of the ownership of lots bounded thereon, which implies subjection, if not consent, to the exercise and determination of the public will respecting what grades or changes in the grades thereof shall, from time to time, be found necessary, and what other improvements thereon or therein (within the legitimate purposes of streets), shall be found expedient, it results, we think, that adjoining property owners are not entitled, of legal right, without statutory aid, to compensation for damages which result as an incident or consequence of the exercise of this power by the State or the municipality by delegation from the State."

" Accordingly," he says, " the courts by numerous decisions in most of the States, have settled the doctrine that municipal corporations, acting under authority conferred by the legislature to make and repair, or to grade, level and improve streets, if they exercise rea sonable care and skill in the performance of the work resolved upon, are not answerable to the adjoining owner, whose lands are not actually taken, for consequential damages to his premises, unless there is a provision in the charter of the corporation, or in some statute, creating the liability." 2 Dillon on Mun. Corp. §§ 782, 783.

The numerous decisions referred to by the learned author in the note to § 783, show that the doctrine stated in the text prevails in the Federal courts and in almost all the States of the Union. We...