Town of Galax v. Waugh

• Decision Date: 17 September 1925
• Parties: TOWN OF GALAX v. WAUGH.
• Court: Virginia Supreme Court

Page 213

143 Va. 213

TOWN OF GALAX v. WAUGH.

Supreme Court of Virginia, Staunton.

September 17, 1925.

1. STREETS AND HIGHWAYS — Change of Grade in Street — Damages to Property Owners — First or Subsequent Grading — Case at Bar. — In some States it has been held that a city or town has the right to depart from a natural or surface grade, without liability for damages except for negligence in doing the work, as every one could reasonably anticipate that a grade would be established at some time. But under constitutional provisions similar to that of Virginia (Constitution of 1902, Art. IV, sec. 58), forbidding the "damaging" of private property, the decided weight of authority makes no difference between a first and subsequent grading where improvements have been made with reference to an existing grade. And in the instant case, a proceeding by a property owner to recover for damages to his property by the change of grade in a street, the plaintiff was not precluded from recovering any special damages sustained by him by reason of the fact that no grade had been previously established.

2. EMINENT DOMAIN — Constitution of 1902, Art. IV, Section 58 — Just Compensation — Damage to Property. — The Constitution of 1902 (Art. IV, sec. 58) provides that the General Assembly "shall not enact any law whereby private property shall be taken or damaged for public uses, without just compensation." The words "or damaged" are new. Prior to 1902, if no part of the property was taken, but the property was damaged by municipal improvements, e.g., a change in the grade of a street, it was damnum absque injuria, and the owner and not the public had to sustain the loss.

3. EMINENT DOMAIN — Damages — Benefits — Constitution of 1902, Art. IV, Section 58. — Under Constitution of 1902, Art. IV, section 58, for the land taken the owner is entitled to receive full compensation in money, without deduction for any benefits, but, as to the land not taken, there is to be deducted from the damage sustained peculiar benefits received, and if the damage to the residue of the tract falls short of such peculiar benefits, the deficiency is not to be charged to the owner, and he would have no cause of action for damage to such residue.

4. EMINENT DOMAIN — Damages — Benefits — Community Benefits. — Community benefits are not to be considered in estimating the damage to property not taken, either before or since the adoption of the Constitution of 1912, but community benefits do not include special benefits to all the property on the same street arising out of a change of grade of the street.

5. STREETS AND HIGHWAYS — Change of Grade — Measure of Damages to Abutting Owners — Market Value. — The measure of damages for the change of grade of a street is the difference in market value before and after the change, so far, of course, as the difference is due to the change, excluding consideration of general damage suffered by the community at large and general benefits enjoyed by the community at large.

6. EMINENT DOMAIN — Special Benefits — Community Benefits. — Because special benefits are common to several or a number of property owners on the same street, they are not to be regarded as community benefits, and they are to be taken into account in estimating the value of the property after an improvement.

7. EMINENT DOMAIN — Constitution of 1902, Art IV, Section 58 — Inequalities — Case at Bar. — The wit of man has not yet devised any scheme for the imposition of burdens for the use of the public that will not at times produce some inequalities, and it may be do some injustice, but this is one of the burdens of organized society. All the Constitution guarantees is that private property shall not be taken or damaged for a public use without just compensation. In the instant case no part of plaintiff's property was taken, and although it was damaged to the extent of $750, it was enhanced in value by the improvement far in excess of this sum. Plaintiff, therefore, could not complain that he had been damaged, but only that, in his case, there was a deduction from the benefit he would otherwise have enjoyed while there was no such deduction from the benefits received by others similarly situated. This might be inequality but it was not injustice.

8. EMINENT DOMAIN — Constitution of 1902, Art. IV, Section 58 — Change of Grade of Street — Obstruction of Free Access. — A city or town has no right to obstruct its streets so as to deprive the property owner of free access to and from his property abutting thereon. Such access materially affects the value of his property, and obstruction is a "damage" peculiar to him for which the Constitution provides he shall be compensated. But this compensation need not be paid in money. If the property owner is otherwise made whole, if he has received peculiar benefits from the improvement which equal or exceed his loss or damage, then he has not been damaged within the meaning of the Constitution. It is generally agreed that peculiar damage may be set-off by special or peculiar benefits.

9. EMINENT DOMAIN — Damage to Abutting Property from Improvements — Constitution of 1902, Art. IV, Section 58 — Estimating Damages — Effect of Improvement on Market Value of Whole Property. — Where the right of recovery by an abutting owner turns on the diminution in the pecuniary or market value of his property caused by a public improvement, the effect of the improvement on the market value of the whole property should be considered, and not merely such effect on part of it. If one part of the property is specially benefited, and the value of the whole is not diminished, then there is no damage done, and no recovery can be had.

10. EMINENT DOMAIN — Just Compensation — Constitution of 1902, Art. IV, Section 58 — Damage to Land. — The "just compensation" provided for by the Constitution of 1902, article IV, section 58, for private property, taken or damaged for public uses, is a fair equivalent for the "damage" inflicted. If the owner of the property is made whole in consequence of the enhanced value of his property by the improvement, then he is not damaged within the meaning of the Constitution. The enhanced value which makes him whole, however, must be an enhancement to him and to others similarly situated, and not a mere general, or community enhancement, common to all, whether similarly situated or not.

11. EMINENT DOMAIN — Just Compensation — Constitution of 1902, Art. IV, Section 58 — Damage to Land — Change of Grade of Street. — If the change of the grade of a street causes an enhancement of the market value of property abutting on that street greater than that of property not so abutting, the excess benefit is special to such abutters, although a number are so benefited, and is to be taken into account in determining whether or not the property of such abutter has been "damaged" within the meaning of the Constitution.

12. STREETS AND HIGHWAYS — Change of Grade of Street — Damage to Property Not Taken — Enhanced Value of Property — Case at Bar. — In the instant case, a claim against a town by a property owner for damage to his property by a change in the grade of a street, no grade lines had ever been established for the street at the time of the grading complained of, but for many years the grades of the streets and sidewalks of the town conformed generally to the natural contour of the ground. The overwhelming weight of the evidence was to the effect that the property of the plaintiff as a whole had its market value largely increased by the improvement — between $2,500 and $6,250 — and that the special damage to the property was only $750. The increase in value to plaintiff's property was not peculiar to that property alone but was enjoyed by all the property owners on the street.

Held: That in estimating the market value of the property of plaintiff after the improvement, there should be taken into consideration the special benefits received by him in consequence of the enhanced value of his property by reason of the improvement, notwithstanding that other property owners abutting on the street also enjoyed such enhanced values, and as the findings of fact showed that such enhancement far exceeded the damage sustained by plaintiff, it follows that a judgment in his favor must be reversed, and the Supreme Court of Appeals having ample facts before it to attain the ends of justice, in pursuance of section 6365 of the Code of 1919, reversed the judgment in favor of the plaintiff and rendered judgment in favor of the defendant.

Error to a judgment of the Circuit Court of Grayson county, in a proceeding against a town for damage to plaintiff's property by a change of grade of a street. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

S. F. Landreth and W. B. Kegley, for the plaintiff in error.

Rhudy & Sutherland, for the defendant in error.

BURKS, J., delivered the opinion of the court.

The town of Galax raised the grade of a section of Main street between three and four feet along the side of the property of J. B. Waugh, which Waugh claimed damaged his property to the amount of $8,000. He presented a claim for this amount to the council of the town, which refused to allow him anything. Thereupon Waugh appealed to the Circuit Court of Grayson county, in which county the town of Galax is situated. All matters of law and fact were submitted to the judge of said court, without the intervention of a jury, and he entered judgment in favor of Waugh for $750. To this judgment a writ of error was awarded by one of the judges of this court.

The town of Galax was incorporated by the legislature in 1906. Prior thereto, in 1903 and 1904, the town had been partly laid off in an orderly manner by the Grayson Realty Company of which J. B. Waugh was the president, and some of the lots had been sold and buildings erected thereon. No grade lines had ever been established for the streets at the...