Vanderlip v. City of Grand Rapids
| Decision Date | 01 February 1889 |
| Citation | 73 Mich. 522,41 N.W. 677 |
| Court | Michigan Supreme Court |
| Parties | VANDERLIP v. CITY OF GRAND RAPIDS ET AL. |
Appeal from superior court of Grand Rapids, in chancery; EDWIN A BURLINGAME, Judge.
J W. Ransom, (M. J. Smiley, of counsel,) for appellants.
Earle & Hyde, for appellee.
The bill is filed in this cause for an injunction to restrain the city of Grand Rapids and the other two defendants, who are contractors, from dumping or piling earth or other materials on the lots of the complainant, and from depositing earth or other materials adjacent to her premises, so that the same will slide down thereon; and also from trespassing upon, invading, encroaching upon, or taking said premises, or any part thereof. The cause was heard in the superior court of Grand Rapids, in chancery, on bill and answer; and on November 16, 1888, a final decree was entered as prayed in the bill. Defendants appeal.
The facts, as shown by the bill and answer, are in brief as follows: The complainant is the owner of two lots in the city of Grand Rapids, lying on the west side of College avenue, immediately north of the right of way of the Detroit, Grand Haven & Milwaukee Railway Company. These lots have a frontage of 144 feet on College avenue, and extend back 170 feet, and for which she paid, in 1878, $900. The answer admits the lots to be worth $800. Here the complainant resides with her husband and children. The avenue has never been graded at this point, and follows the natural surface of the ground, and is 66 feet in width. It is now proposed to grade the avenue north, from south of the railroad track across said track, past the lots of the complainant, and so on to the northern limits of the city. At a point some 500 feet south of the railroad track, up to which the avenue is graded, the natural surface of the ground and the avenue thereon descends quite rapidly, so that in front of complainant's lots it is 26 feet below the proposed grade at that point. Then, passing the complainant's lots, the present surface of the avenue rises even more rapidly, and at a greater height, than it does from her lots south, so that her lots lay in a depression about 26 feet below the proposed grade of the avenue. The ridge of ground that crosses the avenue some 500 feet north of complainant's premises is higher than the ridge south of the railroad track, and swings around the north and west sides of the complainant's lots, and immediately at the rear of the lots, until it meets the railroad track; so that, if the city does as it proposes,-raise the grade of College avenue 26 feet above the present level, or 22 feet above the sills of complainant's dwelling-house, as the answer admits it is proposed to do,-complainant's lots will be left in a depression, surrounded by the embankment of the avenue on the east, the railroad track and ridge on the south, and the northerly ridge on the north and rear, and entirely cut off from access to the avenue. The answer denies the allegation in the bill that there is no alley to the rear of the lots, and no possible way to get in or out when the avenue in front is raised, and charges that there is a public alley in the rear of and adjoining said premises leading north to More street. But complainant claims that while this is an alley laid out on the plat of this part of the city, on the rear of said lots, it only exists on the drawing, and is a fancy sketch, and cannot be actually placed there without great expense, and the removal of a large area of hill. Upon the complainant's premises are situated her dwelling-house and barn; the house being an ordinary two-story frame dwelling-house, with kitchen extension at rear, and standing gable-end to the avenue, the east front or end being only 24 feet and 9 inches from the west line of the avenue. In this east end of the house windows are placed on both stories looking upon the street. On the 14th day of May, 1888, the city entered into a contract with the defendants Mathewson and Kloote to grade and improve College avenue, or the unimproved part, past complainant's property, according to certain plans and specifications, in carrying out of which it would result, as the answer admits, that College avenue would be raised in front of complainant's dwelling 22 feet above the sills thereof, and some 26 feet above the level of the front of complainant's lots; that when so raised the avenue will be of the full width of 66 feet on top of the embankment in front of complainant's house, and, if the walls of the embankment were to be raised perpendicularly, the face of the wall would be only 24 feet and 9 inches distant from the east end of the house. But by the said contract and specifications it is not proposed to raise the avenue between retaining walls, so that the embankments at the present surface of the ground will be only 66 feet in width, as on the top, but it is proposed to raise it by a fill of earth 66 feet wide on top, and slanting out on either side towards the bottom, in conformity to the natural slope of earth when so dumped. According to the admissions of the answer, when the fill is made as proposed, (and the work was to begin at once, by the terms of the contract, and be completed before August 15, 1889,) the earth of the embankment will slide back 34 feet and 9 inches, over upon complainant's lots, across their east front, and 10 feet past the side of her house, and will bury the east end of her house in the slope of the fill 5 feet and 9 inches, measured perpendicularly. This will bring the dirt high enough to crush through the front windows of the first story, and flow in and over the floor of her front room, besides taking and occupying for street purposes, without purchasing the same, or taking any proceedings to condemn, a strip of land off of the front of complainant's said lots of nearly 35 feet in width, and 144 feet long. The answer admits the fill will also pass the side of complainant's barn, and bury that on the front end 3 feet and 3 inches; that the city has not taken or begun any proceedings to condemn said lots, or any part thereof, for street purposes, and has not contemplated taking any such proceeding, nor has offered to buy said lots, or any part thereof, or offered to pay for the same, or to recompense complainant for the taking, damage, or destruction.
The theory of the answer appears to be that the city, under its powers to grade and improve its streets, has the right to raise the grade of College avenue in front of complainant's lots to the height of the proposed grade, and that if, in doing so, the earth of the fill slides over upon complainant's land, even to the extent stated above, that it is an incident to the improvement of the street, and the damages, if any, suffered by the complainant, are consequential, and such that she has no remedy for; that the filling in of the avenue opposite said premises, in the manner proposed, is not a taking of the private property adjoining for public use; and that the city is not required to take proceedings to condemn the same. The defendants contend that the city of Grand Rapids, by virtue of its charter, has ample authority to make the contemplated improvements. Section 1, tit. 6, of the charter, (Local Acts 1877, pp. 157, 158,) provides: "The common council shall have the care and supervision of the highways, streets, bridges, lanes, alleys, parks, and public grounds in said city, and it shall be their duty to give directions for the repairing, preserving, improving, cleansing, and securing of such highways, bridges, lanes, alleys, parks, and public grounds, and to cause the same to be repaired, cleansed, improved, and secured, from time to time, as may be necessary, to regulate the roads, streets, highways, lanes, parks, and alleys already laid out, or which may be hereafter laid out; and to alter such of them as they shall deem inconvenient. ***" Section 2, tit. 6, Local Acts 1887, p. 504, provides: "The board of public works of said city shall have power, and are empowered, to grade, gravel, raise, level, repair, amend, pave, or cover with broken or pounded stone, plank, or other material, all streets, alleys, lanes, highways, public grounds or sidewalks in said city, and such designated portions of any street, alley, lane, or highway in said city as the common council by a majority vote of all the members elect shall by resolution declare to be a necessary public improvement. ***" It is also provided in section 6 of the act organizing said board of public works, (3 Local Acts 1873, pp. 56, 58:) "Said board of public works is hereby empowered to determine and establish the grade lines of all streets, highways, lanes, alleys, sidewalks, and public grounds in said city, and to locate all necessary sewers, drains, culverts, vaults, arches, and bridges, wells, pumps, and reservoirs in said city; to cause to be graded, graveled, paved, planked, or covered with other materials all such streets, highways, lanes, alleys, sidewalks, and public grounds in said city, and to construct all such main and lateral sewers, drains, culverts, vaults, arches, and bridges, wells, pumps, and reservoirs in said city, as the common council of the city of Grand Rapids shall by resolution declare to be necessary improvements."
It is contended by counsel for the defendants that the law is settled that, unless the charter or statute authorizing the corporation to proceed with such improvements expressly provides a remedy for parties who suffer consequential damages, the corporation is not liable to property owners for such consequential damages, necessarily resulting from either establishing a grade or changing an established grade of streets, and, if the legislature gives or provides a remedy in such case...
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