Swift & Co v. City Of Newport News

• Decision Date: 01 March 1906
• Citation: 105 Va. 108,52 S.E. 821
• Court: Virginia Supreme Court
• Parties: SWIFT & CO. v. CITY OF NEWPORT NEWS.

52 S.E. 821

105 Va. 108

SWIFT & CO.

v.CITY OF NEWPORT NEWS.

Supreme Court of Appeals of Virginia.

March 1, 1906.

1. Eminent Domain—Compensation—Alteration of Grade of Highway.

At common law municipal corporations were not liable to one whose land was not taken for consequential damages arising from the change of grade of a street, although improvements had been made on his lot in conformity to a former grade.

[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 269, 270.]

2. Common Law—Continuance in Force.

The common law remains in force in this state, except when changed by statute or the Constitution.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Common Law, §§ 9-12.]

3. Statutes — Construction — Prospective Operation.

The Constitution and statutes operate prospectively only, unless the words therein employed show clearly and expressly an intention that they should operate otherwise.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 20; vol. 44, Cent. Dig. Statutes, § 344.]

4. Constitutional Law — Construction of Constitution.

Constitutional provisions in pari materia are, like statutes, to be construed together, and effect is to be given to the policy established by the Constitution.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 9, 11.]

5. Same.

A fair interpretation is to be given to the language used in the Constitution, and the words thereof are to be construed in their common and ordinary acceptation, unless it clearly appears that they were intended to be used in some other sense.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 11.]

6. Same—Carrying Out of Constitution— Self-Executing Provisions.

A constitutional provision should never be construed as dependent for its efficacy and operation upon the legislative will, and consequently statutes existing when the Constitution was adopted, inconsistent with its pro-visions, are nullified by the Constitution, even though legislation may be desirable and valuable for the purpose of defining the right conferred by the Constitution and aiding in its enforcement.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 21-30.]

7. Same — Infraction of Constitutional Rights—Remedy.

Under Const, art. 1, § 6, and article 4, § 58 [Va. Code 1904, pp. ccix, ccxxii], which provide in effect that property shall not be "taken" or "damaged" for public use without just compensation, whereas the corresponding provisions of the previous Constitution (article 1, § 8, and article 5, § 14) only provided that property should not be "taken" for a public use, one whose property is damaged for a public use may, in the absence of an existing constitutional or statutory remedy, maintain an appropriate action at common law for the redress of the wrong done him.

[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 233, 694.]

8. Eminent Domain — Compensation — Damage of Property—Constitutional Provisions.

The old Constitution (article 1, § 8, and article 5, § 14) provided merely that property should not be "taken" for a public use without just compensation. A city was, by Acts 1895-96, p. 80, c. 64, § 29, empowered to grade streets without the payment of consequential damages. It accordingly passed a grade ordinance without making provision for the payment of such damages, but did not proceed to carry out the ordinance until the Constitution of 1902 became effective. The latter Constitution provides (article 1, § 6, and article 4, § 58 [Va. Code 1904, pp. ccix, ccxxii]), that property shall not be taken "or damaged" for a public use without just compensation, and also provides (article 8, § 117 [page ccxxxviii]), that municipal charters are amended so as to conform to all the provisions and restrictions of the Constitution. Held, that the city could not, after the adoption of the Constitution of 1902, carry out its grading ordinance previously passed without compensating property owners whose property was damaged by the change of grade.

9. Appeal — Reversal — Failure to Give Nominal Damages.

The failure to award nominal damages, unless it be upon a matter which involves the settlement of a right other than the right to recover damages, is not ground for reversal.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4553.]

10. Eminent Domain — Right to Nominal Damages—Nature of Action.

Under Const, art. 1, § 6, and article 4, § 58 [ Va. Code 1904, pp. ccix, ccxxii], providing that property shall not be taken or damaged for public use without "just compensation, " the gist of an action for damaging property for a public use is a recovery of substantial damages, and not an invasion of a legal right, and consequently nominal damages, as such, are not recoverable.

[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 327-331.]

11. Same—Measure of Damages.

Under Const, art. 1, § 6, and article 4, § 58 [Va. Code 1904, pp. ccix, ccxxii], providing that property shall not be taken or damaged for a public use without just compensation, the measure of damages for damaging property for a public use is the depreciation of the property in value when considered in connection with the benefits conferred, and all the items of damage are consequently to be taken together in determining whether the property has been substantially damaged, and there can be no recovery for specific items of damage as such, as for the cost of the improvement in the construction of which the property is claimed to have been damaged, disassociated from other elements of damage and of benefit.

[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 371-377.]

12. Evidence—Opinion Evidence—Experts.

In an action for damaging property for a public use, expert opinion evidence is admissible on the issue of whether the property has been enhanced or depreciated in value by the improvement which is claimed to have caused the damage.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 2341.]

Error to Corporation Court of Newport News.

Action by Swift & Co. against the city of Newport News. There was a judgment for defendant, and plaintiff brings error. Affirmed.

The instructions given by the court were as follows:

"(1) If the jury believe, from the evidence, that at some time after 12 o'clock m. of July 10, 1902, and prior to the institution of this action, the defendant city of Newport News changed, or caused to be changed, the grade of Twenty-Third street in front of the premises of the plaintiff, Swift & Co., and raised the surface and grade of said street about seven inches above the surface and grade as it had theretofore existed, thereby leaving the lot of the plaintiff, and the building thereon, which had been built with reference to the original grade, below grade, and so damaged the property of the plaintiff, they must find for the plaintiff.

"(A) The court instructs the jury that in determining, from the evidence, whether or not the plaintiff has been damaged by the change of grade occasioned by the public improvement made in Twenty-Third street in front of the property, they will take into consideration the benefits, if any, derived therefrom as a whole, and likewise the damages, if any, to the said property, as a whole, and not to any specific part thereof; and if they believe, from all of the evidence, that the market value of the said property was as much immediately after the grade in the street had been so changed as it was immediately before, not knowing it was to be so changed, then they will find for the defendant.

"(B) The court instructs the jury that if they believe, from the evidence, that the raising of the grade of Twenty-Third street was occasioned by the city's paving at its own expense the said street in front of the plaintiff's property, and that such improvement of the street did not reduce the market value of said property, you will find for the defendant. By street is meant 'driveway, ' not 'sidewalk.'"

Wm. C. Stuart, for plaintiff in error.

J, A. Massie, for defendant in error.

CARDWELL, J. This action was brought in the corporation court of the city of Newport News by Swift & Co., a private corporation, to recover of the said city damages alleged to have been sustained in consequence of a change in the grade of a street.

The plaintiff is the owner of two lots, with a frontage of 50 feet, on Twenty-Third street, between Washington and Huntington avenues, in said city, upon which is' a costly building, used by the plaintiff in the conduct of a wholesale beef and cold storage business, with a branch depot for the distribution of its beef to purchasers. In this building there is a basement, with windows, around which are light shafts which extend into the sidewalk, which basement is used for the operation of an electric motor and other machinery. The building was erected with reference to the then existing grade of Twenty-Third street, and in front of same was laid a granolithic sidewalk. The defendant city determined to pave this street entirely at its own expense, and in order to do so found it necessary to make a slight change in the grade in front of plaintiff's property, and to raise the surface of the street between four and seven inches. This change of the grade of the street was made, and a contract for paving the street in accordance with the new grade was let, prior to the taking effect of the new Constitution of the state, at 12 m., July 10, 1902, and work was begun under the contract on other parts of the street; but the contractors did not reach the point in front of plaintiff's property until shortly after the new Constitution took effect. In front of plaintiff's premises the city put in what is known as a low or "drive-over" curb, which does not extend above the pavement; but the street, when completed, was several inches higher than the sidewalk theretofore...