Trueman v. Village of St. Maries

• Decision Date: 13 April 1912
• Parties: WILLIAM TRUEMAN and ALBERT WUNDERLICH, Copartners, Doing Business Under the Firm Name and Style of TRUEMAN & WUNDERLICH, Respondents, v. THE VILLAGE OF ST. MARIES et al., Appellants
• Court: Idaho Supreme Court

123 P. 508

21 Idaho 632

WILLIAM TRUEMAN and ALBERT WUNDERLICH, Copartners, Doing Business Under the Firm Name and Style of TRUEMAN & WUNDERLICH, Respondents, v. THE VILLAGE OF ST. MARIES et al., Appellants

Supreme Court of Idaho

April 13, 1912

APPEAL-TRANSCRIPT-CERTIFICATE-UNDERTAKING ON APPEAL-CITIES AND VILLAGES-POWER AND CONTROL OF STREETS-RAILWAY COMPANY-RIGHT OF WAY OVER STREETS-DAMAGES-RAILWAY OCCUPYING STREETS.

(Syllabus by the court.)

1. On an appeal from a judgment where the transcript on appeal contains the judgment-roll certified to by the clerk of the court, and such judgment-roll is set forth in the transcript on appeal, and the transcript on appeal is certified to by the clerk of the district court, in which it is stated that the transcript "contains a full and true and correct copy of the original papers now on file in my office in the above-entitled action," and specifies all the papers filed in the case, and in addition says, "9. Clerk's certificate of judgment-roll," such certificate shows the transcript contains the judgment-roll.

2. Sec 4935 of the Rev. Codes, which provides "In any civil action or proceeding wherein the state or the people of the state, is a party plaintiff, or any state officer, in his official capacity, or on behalf of the state, or any county or city, is a party plaintiff or defendant, no bond, written undertaking or security can be required of the state or the people thereof, or any officer thereof, or of any county, or city; but on complying with the other provisions of this code, the state, or the people thereof, or any state officer acting in his official capacity, or any county or city, have the same rights, remedies, and benefits as if the bond undertaking or security were given and approved as required by this code," applies to villages organized under the laws of this state governing the organization of cities and villages.

3. Under the provisions of sec. 4178 of the Rev. Codes, if the complaint fails to state facts sufficient to constitute a cause of action, the complaint will not support the judgment rendered upon said complaint and the judgment so entered will be reversed upon appeal.

4. The constitution and laws of this state clearly confer the right upon a railway company to construct its railway within a city or village upon complying with the laws of the state, and also grant power and authority to cities and villages to pass ordinances granting a right of way to a railway company to lay its track and use as a right of way streets within said city or village, and in all such cases both the city or village and the railway company must comply with the provisions of the law and also the ordinances of such village.

5. Where an action is brought against a village for failure to ascertain and assess damages under the provisions of subds 26 and 27 of sec. 2238 of the Rev. Codes, it is necessary to allege in the complaint the acts and procedure of the village, including the ordinances passed under which said village proceeded in condemning or taking the property, and the ascertainment and assessment of damages and the payment of such damages, and until such damages are assessed and paid, there is no condemnation or taking of such street by the village, and no right of action lies to collect from the village such damages.

6. Where a city or village organized under the laws of this state grants a right of way to a railway company to lay its tracks along the streets in said city or village, such city or village is exercising its governmental powers granted to it by the constitution and the statutes of the state, and by such acts does not in any way create a liability against the municipality for damages occasioned by the railway company exercising the right so granted, and the damages resulting from exercising the right so granted to the city or village cannot be recovered in an action against the city or village and whatever liability there is, is against the person to whom such right of way is granted.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.

An action to recover damages against the village of St. Maries. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to the appellants.

R. B. Norris, F. M. Dudley, and J. L. McClear, for Appellants.

The mere granting of the right to the railway company to construct its railway across or along the street did not, and could not, damage any property. Such damage, if it accrued at all, would accrue only when the railway company, acting under such consent, actually occupied the street. (Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 42 Am. St. 149, 37 P. 750; Jones v. Borough of Bangor, 144 Pa. 638, 23 A. 252.)

Such an injury as alleged in the court's finding gives no right of action or claim for compensation to a private individual. (Sec. 3665, Rev. Codes; Stufflebeam v. Montgomery, 3 Idaho 20, 26 P. 125; Ponischil v. Hoquiam Sash etc. Co., 41 Wash. 303, 83 P. 316, and cases cited; Shaubet v. St. P. & S. C. Ry. Co., 21 Minn. 502; Jacksonville etc. Ry. Co. v. Thompson, 34 Fla. 346, 16 So. 282, 26 L. R. A. 410; Guttery v. Glenn, 201 Ill. 275, 66 N.E. 305; Zettel v. City of West Bend, 79 Wis. 316, 24 Am. St. 715, 48 N.W. 379; Robinson v. Brown, 182 Mass. 266, 65 N.E. 377; Aldrich v. Wetmore, 52 Minn. 164, 53 N.W. 1072; Abram v. Shallenberger, 41 Cal. 449; Anthony Shoe Co. v. West Jersey Ry. Co., 57 N.J. Eq. 607, 42 A. 279; Innis v. C. R. etc. Ry. Co., 76 Iowa 265, 40 N.W. 701, 22 L. R. A. 282; Jones v. St. P. M. & M. Ry. Co., 16 Wash. 25, 47 P. 226.)

Damages to business cannot be considered as an element for which compensation is to be allowed for the taking of property under eminent domain proceedings. (Philadelphia Ball Co. v. Philadelphia, 192 Pa. 632, 73 Am. St. 835, 44 A. 265, 46 L. R. A. 724, and cases cited; Kansas City etc. R. Co. v. Anderson, 88 Ark. 129, 16 Ann. Cas. 784, 113 S.W. 1030; Cook R. Co. v. Sanitary District, 177 Ill. 599, 52 N.E. 870; Cobb v. Boston, 109 Mass. 438; Sawyer v. Commonwealth, 182 Mass. 245, 65 N.E. 52, 59 L. R. A. 726; Emery v. Boston Terminal Co., 178 Mass. 172, 86 Am. St. 473, 59 N.E. 763; Ranlett v. Concord, 62 N.H. 561; Central P. R. R. Co. v. Pearson, 35 Cal. 247; 15 Cyc. 733; 2 Lewis on Eminent Domain, 3d ed., sec. 727.)

A final judgment cannot be rendered against the village until the cause of action has been established against the primary actors, notwithstanding the village may have defaulted. (Pratt v. So. Canon Supply Co., 47 Colo. 478, 107 P. 1105; Frow v. De La Vega, 15 Wall. (U. S.) 552, 21 L.Ed. 60; Anderson v. Gray, 134 Ill. 550, 23 Am. St. 696, 25 N.E. 843; Murtland v. Floyd, 153 Pa. 99, 25 A. 1039; Curtis v. Smith, 42 Iowa 665; Long v. Serrano, 55 Cal. 20.)

The complaint does not state facts sufficient to constitute a cause of action against the village of St. Maries.

Upon a writ of error to reverse a judgment by default, such defects in the complaint as could have been taken advantage of before judgment by general demurrer may be brought under review. (McAllister v. Kuhn, 96 U.S. 87, 24 L.Ed. 615; Sloan v. Faurot, 11 Ind. 689, 39 N.E. 539; Ryan v. Holliday, 110 Cal. 335, 42 P. 891; Leforce v. Haymes, 25 Okla. 190, 105 P. 644; Ishmel v. Potts (Tex. Civ. App.), 44 S.W. 615; Schneider v. Mahl, 84 A.D. 1, 82 N.Y.S. 27; 6 Ency. of Pl. & Pr. 117.)

The statutes of Idaho distinctly vest in municipalities power to grant permission for the construction of railroads across or along streets, and do not require as a condition precedent to the exercise of such power that there shall be any appraisal of damages to abutting owners. In granting such permission the municipality acts in a governmental capacity and incurs no liability by such action. (3 Abbott's Mun. Corp., secs. 953-957; Soulard v. City of St. Louis, 36 Mo. 546; Simpson v. Whatcom, 33 Wash. 392, 99 Am. St. 951, 74 P. 577, 63 L. R. A. 815; Stevens v. Muskegon, 111 Mich. 72, 69 N.W. 227, 36 L. R. A. 377; Murtaugh v. City of St. Louis, 44 Mo. 479, and cases cited; Wagner v. City of Portland, 40 Ore. 389, 60 P. 985, 67 P. 300.)

The municipal corporation incurs no liability to a property owner, by giving such permission as alleged here. (Sorensen v. Town of Greeley, 10 Colo. 369, 15 P. 803; Jordan v. Benwood, 42 W.Va. 312, 57 Am. St. 859, 26 S.E. 266, 36 L. R. A. 519; Terry v. Richmond, 94 Va. 537, 27 S.E. 429, 38 L. R. A. 834; Dillebach v. Xenia, 41 Ohio St. 207; Laager v. City of San Antonio (Tex. Civ. App.), 57 S.W. 61; Frith v. Dubuque, 45 Iowa 406; Elliott on Roads and Streets, 2d ed., sec. 702; 3 Abbott on Mun. Corp., sec. 841; 2 Dillon on Mun. Corp., secs. 767, 768.)

Whitla & Nelson, for Respondents.

A pleading that is obscure and indefinite is sufficient on demurrer if a cause of action may be inferred from its averments. (Delano v. Rice, 21 Misc. 714, 48 N.Y.S. 130.)

If there is any special reason why the complaint is ambiguous or unintelligible or uncertain, it is waived by not filing a demurrer on this ground and is cured by a judgment. (Aulbach v. Dahler, 4 Idaho 654, 43 P. 322; Palmer v. Utah & Northern Ry. Co., 2 Idaho 315 (290), 13 P. 425.)

The complaint sufficiently alleges the acts of the village. (Collopy v. Cloherty, 95 Ky. 330, 25 S.W. 497; Decker v. McSorley, 111 Wis. 91, 86 N.W. 554.)

The village cannot grant a franchise upon the street and then pretend to vacate it--which is shown in this case to have been done absolutely for the benefit of the railroad company--and then escape its liability for the payment of demages by reason thereof. (Ligare v. City of Chicago, 139 Ill. 46, 32 Am. St. 179, 28 N.E. 934; Schade Brewing Co. v. Superior Court, 62 Wash. 96, 113 P. 576.)

They can grant them the right only when...