Webber v. Salt Lake City

• Decision Date: 28 December 1911
• Docket Number: 2251
• Citation: 40 Utah 221,120 P. 503
• Court: Utah Supreme Court
• Parties: WEBBER v. SALT LAKE CITY

120 P. 503

40 Utah 221

WEBBER v. SALT LAKE CITY

No. 2251

Supreme Court of Utah

December 28, 1911

APPEAL from District Court; Third District; Hon. M. L. Ritchie Judge.

Action by Mary E. R. Webber against Salt Lake City.

Judgment for plaintiff. Defendant appeals.

MODIFIED AND AFFIRMED.

H. J Dininny and P. J. Daly for appellant.

Howat &amp Macmillan for respondent.

FRICK, C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

Respondent brought this action for the recovery of consequential damages, alleged to have been sustained to her premises abutting upon a public street in Salt Lake City. She alleges that the damages were caused by appellant in making a change in the grade of the street in front of her property. A trial to the court, without a jury, resulted in findings and judgment in favor of respondent, from which appellant prosecutes this appeal.

It is conceded on all sides that the appellant had the legal authority to make the improvement in the street; that it was properly made; and that the liability in this case arose, either by virtue of the provisions of our Constitution, or by virtue of a certain statute to which we shall refer hereafter.

This case, so far as the question of a change of an established grade is concerned, falls squarely within the decisions of this court in Kimball v. Salt Lake City, 32 Utah 253, 90 P. 395, 10 L. R. A. (N. S.) 483, 125 Am. St. Rep. 859; Hemstead v. Salt Lake City, 32 Utah 261, 90 P. 397; and Felt v. Salt Lake City, 32 Utah 275, 90 P. 402. In view of the rule laid down in the cases just referred to, the change of grade in this case was clearly a change of an established grade, and, as the evidence is sufficient to sustain such a finding, no further discussion of that question is necessary.

One of the principal errors assigned is that the court erred in overruling appellant's demurrer to the complaint. The demurrer is based upon the ground that the alleged cause of action is barred by the "provisions of sections 312, 313, and 2877 of the Compiled Laws of 1907." Section 312 in effect provides that certain enumerated claims against a city shall be presented to the city council for allowance within thirty days after the injury or damages sued for arose, and, unless so presented, the right to prosecute the action is barred. It is made to appear from the record that the street improvement which respondent alleges caused the damages in question was completed on April 13, 1908; that claim for damages was duly filed with the city council on May 8, 1908; and that this action was commenced May 10, 1909. Appellant's counsel insist that the claim in this case was not one which was required to be lodged with the city council under the provisions of section 312, supra, but that the claim in suit is one which falls within the provisions of subdivision 1 of section 2877, supra, which, so far as material here, provides: "An action for liability created by . . . the statute of this state other than a penalty or forfeiture . . . shall be begun within one year." Counsel therefore contend that the right to bring this action was complete on April 13, 1908; that, inasmuch as it was unnecessary to file a claim, the filing of one could not extend the time within which an action must be begun, and as this action was not begun until May 10, 1909, the cause of action was barred by the provisions of section 2877, supra. Whether the foregoing contention is sound or not depends upon whether the liability set forth in this action is one created by statute. Appellant's counsel assert that this action is grounded on section 282, Comp. Laws Utah 1907, which is to the effect that damages resulting to abutting property and the improvements thereon, by reason of changing an established grade of street, may be recovered in an action brought for that purpose. As we pointed out in Kimball v. Salt Lake City, supra, which was an action like the one at bar, section 282, just referred to was adopted in 1896, after the Constitution of this state had been adopted, and said section was evidently passed for the purpose of harmonizing the statutory law of this state with section 22 of article 1 of the Constitution, which provides that "private property shall not be taken or damaged for public use without just compensation." Appellant's counsel concede that this constitutional provision is self-executing, and to make it available required no legislative aid. The right to recover consequential damages for injury to private property by reason of making public improvements therefore does not rest upon section 282, supra, but is based upon the provision quoted from section 22 of article 1 of our Constitution.

As we have pointed out, the constitutional provision existed when section 282 was adopted. Moreover, the right to recover damages would continue precisely the same, although section 282 were repealed. If a right or liability--call it what you will--therefore existed before section 282 was adopted, such right or liability was not created by that section. Again, if the right or liability will continue in full force and effect, although that section were repealed, such right is not even exercised by virtue of that section. In other words, for the purposes of an action like the one at bar, the provisions of section 282 are not controlling or even material.

From what has been said, it follows that this action is not based upon section 282. Even though it be conceded, therefore, that the provisions of subdivision 1 of section 2877, supra, are applicable to section 282, yet, as this action is based upon the constitutional provision to which we have referred, this action is not affected by section 2877.

With respect to what is the limit within which actions for consequential damages to abutting property, which are caused by lawfully constructing or operating a steam railroad in a public street by authority of the city, must be commenced, we held, in O'Neill v. S. P., L. A. & S. L. R. Co., 38 Utah 475, 114 P. 127, that such actions fall within the provisions of section 2883, Comp. Laws 1907, and hence are not barred, if commenced within four years from the time the cause of action accrued. The right to recover in the O'Neill Case, as in the case at bar, was based upon section 22 of article 1 of our Constitution. In so far as the statute of limitations is concerned, therefore, we can see no material difference between actions for consequential damages to abutting property, caused by the lawful interference by a railroad company by using a public street, which interference is based upon the authority of the city, and such interference by the city itself. In either case, if the improvement which causes consequential damages, whatever it may be, is authorized by law, and is executed with due and proper care, the abutting owner is nevertheless entitled to recover for such consequential damages by reason of the constitutional provision referred to, and not otherwise.

Nor is this action barred by the provisions of section 312, supra. This is so for the reason that, if it were necessary to file a claim in an action like this, then the claim was filed within the time provided by statute. In view, therefore, that the claim was filed in time, the question of whether the respondent was legally required to file one or not becomes entirely immaterial in this case; and hence we express no opinion upon that point.

There are a number of assignments relating to the admission and exclusion of evidence. If it were assumed that, with regard to some of the errors complained of, the court had technically erred, yet the errors, if any, are entirely harmless; and hence require no further consideration.

The next assignment relates to the damages which were allowed, by the court, and even counsel for respondent concedes that this is a question "worthy of serious consideration." At the trial respondent, over appellant's objections, was permitted to show that in lowering the grade of the street in front of her lot and dwelling house, in which she lived, appellant removed a row of shade trees which respondent had planted and cared for, and which were growing in the street; that said trees were both ornamental and useful, and the removal of which materially affected the market value of her property. It is conceded by counsel for respondent that the fee to the street on which the improvements were made is in the city; that in lowering the grade of the street the city proceeded lawfully; that it made the improvement with due care; and that in lowering the grade it was necessary to dig up and remove the trees in question. The court, after finding that in the year 1888 respondent had erected a dwelling house upon her lot, and had planted shade trees in front thereof in the street in question, further found that in changing the grade of the street, aforesaid, respondent's "real estate was damaged and diminished in market value in the sum of $ 2006.25; $ 1000 of such damages and diminution in the value being caused by the destruction of said shade trees planted in said street by the plaintiff (respondent), as aforesaid." Appellant now urges that the court erred in admitting and in considering the evidence regarding the destruction of said trees, and in allowing respondent any amount as damages therefor. The question is therefore squarely presented whether a city, while proceeding lawfully and properly in changing an established grade of a public street, is liable in damages for the removal of shade or ornamental trees which were planted and are growing in the street, and the removal of which was necessary and unavoidable in changing the grade of the street, the fee to which is in the city.

It is contended by counsel for respondent that,...