Wolfe v. Pearson
| Decision Date | 20 March 1894 |
| Citation | 19 S.E. 264,114 N.C. 621 |
| Parties | WOLFE et ux. v. PEARSON. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Buncombe county; Hoke, Judge.
Action by W. O. Wolfe and wife against Richmond Pearson for changing the grade of a street in front of plaintiffs' premises. Judgment for plaintiffs. Both parties appeal. Reversed.
The action was to recover damages for injury to a storehouse built abutting upon the southeastern corner of the public square, in Asheville, N. C., and the title to the property was admitted to be in feme plaintiff. There was evidence tending to show that plaintiff W. O. Wolfe, for his wife, had caused the store-house to be constructed on a lot adjoining the southeastern corner of the public square. The building abutted upon said square, fronting towards the north. The house was built in 1887. Beyond the building, and bounding same on the east, was Market street, which entered the square from the street designated in the plot of the town as a street 40 feet wide. There was evidence that, at the time this building was constructed, this street, known as Market street, was very little used as a public thoroughfare, and was regarded and used only as an alley. The level of said street was some lower than the square, which it approached from the south at an incline. There was evidence that said W O. Wolfe, on constructing said building, had erected a wall along Market street some 8 feet beyond his own lot, and extending north and south parallel to his building, and running along Market street into the square 8 feet and more and had filled in the wall so as to level so much of Market street to the level of his store building and to the level of the public square in front of his building. That before bringing this suit, and prior to the acts of the defendant herein complained of, the approach to said store building from the square was on a level, but the approach to the building from Market street was made inconvenient by the wall, which was vertical from the last approach from 2 to 3 feet, the wall leaving an entrance of 32 feet. Approach from Market street to square was not otherwise impeded. Plaintiff W. O. Wolfe testified that before building this wall he had obtained permission from the board of county commissioners. He also testified that before commencing his building he had spoken to a member of the board of aldermen and to one of the grade committee for information as to the grade of the public square where it bounded his lot, and was referred by them to one Mr. Aston, who was at that time city engineer, and, so acting on such reference, witness applied to Mr. Aston, and was informed by him that the grade was as witness then found it. The charter and amendments of city of Asheville were introduced, showing the grade of the streets to be in control of the aldermen. There was also evidence tending to show that some time, about one month or more, before bringing this action, to wit, in November, 1890, defendant, who had bought property in a part of the city that could be approached along Market street, and desiring to enhance the value of his purchase by making greater facility of access thereto, hired a number of hands, and, against the protest of plaintiff, dug down and hauled away a part of the earth from the public square in front of plaintiff's building, and tore away and removed a part of the wall built by plaintiff, which extended along Market street into the square, designing and intending to make the approach from Market street into the square on a less incline and easier grade. That the excavation came within 8 feet from front door of plaintiff's building, causing an average depression of 35 inches, making the approach from the square much more inconvenient. The public square at this place was proved to be 75 yards wide or more. There was evidence of plaintiff tending to show that the action of the defendant had injured the value of plaintiff's building as much as $2,500 or $3,000; that the rental value was reduced one-half, and that it would cost at least $2,500 to lower house to present grade of the street, which was the only feasible way to repair the injury. There was evidence on part of the defendant tending to show that the action of the defendant had benefited the property by making the approach better from Market street and by placing the plaintiff's building as a corner store upon the square and Market street, rendered a frequented thoroughfare by the action of the defendant. There was also evidence tending to show the time and cost required to replace the earth. Defendant also placed in evidence the acts of the board of aldermen of the city of Asheville, taken after the injury complained of and after action commenced, establishing grade of street at the level made by the defendant. The act of the board of aldermen referred to is as follows: The evidence is set out in the case, but it will be unnecessary to state it here. In addition to that which has already been referred to, there was evidence on the part of the defendant tending to prove that before doing the work defendant and hence the action of the board. Defendant filed no written prayers for instructions, but maintained: (1) That his act was justifiable, in that it was done in abatement of a nuisance; (2) that the act of the city authorities on January 9, 1891, herewith sent as part of case, approving act of defendant, though done after act of defendant, and after action brought, related back, and justified defendant's conduct. The court ruled against defendant, charging jury as follows: ' There was a verdict for plaintiff. Motion for a new trial by defendant for errors of court in its rulings on questions of evidence, and for error on charge in holding that the action of the city authorities did not protect defendant, and in holding the defendant, on the entire evidence, could not maintain his position that he was acting in lawful abatement of nuisance. Motion overruled, and defendant excepted. Judgment on verdict for plaintiff. Appeal taken by defendant.
One who is specially injured by an encroachment on a street constituting a public nuisance may remove it.
Charles A. Moore and Gudger & Martin, for plaintiffs.
F. A. Sondley, for defendant.
It will not be necessary to consider in their order the objections to evidence, and exceptions thereto, as the case will be disposed of in the consideration of the errors alleged in the instructions of his honor to the jury. The defendant rested his defense on the merits upon two grounds: (1) Because he was abating a nuisance; (2) because the action of the board of aldermen, approving his act, related back, and justified the conduct of defendant. His honor held that neither position can be maintained by defendant on the evidence, and he directed the jury, if they believed the evidence, to answer the first issue, "Yes."
We have examined the acts constituting the charter of Asheville in force at the time of the act complained of, and the general law concerning cities and towns, and find that by section 3803 of the Code, applicable to all towns and cities unless other modes are expressly provided in the charter, the commissioners "shall provide for keeping in proper repair the streets and bridges in the town in the manner and to the extent they may deem best." By the charter of Asheville , § 19, among the powers expressly given to the board of aldermen are to "provide for repairing and cleansing the streets and side-walks;" also, "to suppress and remove nuisances." And by sections 37 and 38 an elaborate system is provided for the condemnation of land for streets and the assessment of benefits and damages, "whenever in the opinion of the aldermen it is advisable to obtain land or the right of way in the city for the purpose of opening new streets, or widening or straightening streets already established, or for making of culverts or waterways for carrying water out of the streets." But we have been unable to find any special provision, however desirable it may be that some special provision should by law be made, for the grading of the streets and the assessment of benefits and damages arising upon the change of such grades. This city has, then, special power, and the general powers incident to all towns and cities, for keeping its streets in repair which powers would, in our opinion, include authority to make such changes in the grading of its streets as the board of aldermen might deem...
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