Town Of Harrisonburg v. Roller

• Decision Date: 16 November 1899
• Citation: 34 S.E. 523,97 Va. 582
• Parties: TOWN OF HARRISONBURG. v. ROLLER.
• Court: Virginia Supreme Court

34 S.E. 523

97 Va. 582

TOWN OF HARRISONBURG.

v.ROLLER.

Supreme Court of Appeals of Virginia.

Nov. 16, 1899.

Municipal Corporations—Right of Town to Raise Sidewalk—Bar by Former Injunction — Delegation of Power to Street Committee.

1. Where a town, under its charter, as amended by Acts 1895-96, c. 576, § 24, par. 5, has authority to "widen or narrow, lay out, graduate, curb and pave, and otherwise improve" streets and sidewalks, it cannot be enjoined from raising a sidewalk along its streets, although such work might damage the owner of the adjacent lot.

2. Where the city council has authority under the charter to grade and otherwise improve the streets of the city, the fixing of such grade by court of equity is a usurpation of such powers.

3. Where a city council orders a sidewalk raised to a level to correspond with the level established by work that had been completed on walks on the same street, it does not, by leaving the execution of the work to the street committee, delegate to it the discretionary power which was vested in the council by the city charter.

4. The fact that a town was enjoined from further prosecuting the work of grading and raising certain streets at their intersection will not estop it from raising the sidewalk on another street at a later time.

Appeal from circuit court, Rockingham county.

Bill for an injunction by John E. Roller against the town of Harrisonburg. Decree for complainant, and defendant appeals. Reversed.

Yancey & Haas, for appellant.

John E. Roller and Jos. B. Stephenson, for appellee.

RIELY, J. This is an appeal from the decree of the circuit court of Rockingham county, perpetually enjoining the town of Harrisonburg from raising the sidewalk in front of the residence of the appellee, in the execution of the plan adopted by it for improving and laying the sidewalks on the west side of South Main street, and prescribing a permanent grade for the sidewalk in front of hisresidence. The gravamen of his complaint is that to raise the sidewalk as proposed by the town would elevate it above the level of his front yard, and thereby not only cause the surface water to flow upon his yard, but would injure the appearance of his residence.

The right of a municipal corporation, under the authority of its charter, to open, establish, and improve its streets, and to make, improve, and grade its sidewalks, is too well settled, not only by the authorities generally, but by repeated decisions of this court, to require further discussion. If the corporation, acting in these matters under the powers conferred upon it, exercises reasonable care and skill in the performance of the work resolved upon, it is not answerable to the owner of an adjacent lot, whose land is not actually taken, for consequential damages to his premises, unless there is a provision in its charter or in some statute creating the liability, which it is not pretended exists in this case. Such damage is not an injury, in a legal sense, and the law provides no remedy for it. It is damnum absque injuria. 2 Dill. Mun. Corp. (4th Ed.) §§ 987-990; Smith v. City Council, 33 Grat. 208; Kehrer v. Richmond City, 81 Va. 745; Home Building & Conveyance Co. v. City of Roanoke, 91 Va. 52, 20 S. E. 895, 27 L. R. A. 551; and Powell v. Town of Wytheville, 95 Va. 73, 27 S. E. 805.

If the work is done in the exercise of power conferred upon the municipal body, and is executed in a reasonably proper and skillful manner, the city or town, as the case may be, is exempt from legal liability, although the work may be attended or followed by damage, as a necessary incident, to the owner of an adjacent lot. If it is not so executed, and damage results from the manner of its execution to the owner of an adjacent lot, such damage is not necessarily an incident to the accomplishment of the work; and the owner in that case has redress against the city or town by an action of tort. Courts of equity have no authority to interfere by injunction with the exercise in good faith by municipal bodies of discretionary powers conferred upon them by law. If damage ensues to the owner of an adjacent lot from the improper or unskillful performance of the work done within the scope of such power, his remedy is by an action at law, and not in equity. Clearly a court of equity could not interfere and restrain the performance of the work upon the apprehension of the owner of the lot that it may not be properly performed. 2 High, Inj. (3d Ed.) §§ 1240, 1242, 1270; 1 Dill. Mun. Corp. (4th Ed.) § 94; Goszler v....