Wood v. Duke Land & Improvement Co

• Decision Date: 15 April 1914
• Citation: 81 S.E. 422,165 n.c. 367
• Court: North Carolina Supreme Court
• Parties: WOOD et al. v. DUKE LAND & IMPROVEMENT CO.

(165 n.c. 367)

81 S.E. 422

WOOD et al.

v.DUKE LAND & IMPROVEMENT CO.

Supreme Court of North Carolina.

April 15, 1914.

1. Municipal Corporations (§ 400*) — Streets — Change of Grade — Right to Damages.

In the absence of a statute to the contrary, an abutting owner cannot recover for damage to his property by changing the grade of an established street pursuant to proper municipal authority, if the work is not negligently done, so that where the change in grade was made pursuant to a resolution of the city council, and under the direction of the city engineer, for the purpose of improving the street, an abutting owner could not recover from defendant damages for injury to his property, though defendant was active in procuring the resolution to be passed, and agreed, as owner of benefited property, to bear half of the expense of the improvement

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 902-904; Dec. Dig. § 400.*]

2. Municipal Corporations (§ 656*) — Change of Grade—Authority of Municipality.

The power of a municipality to further grade and improve the streets is a continuing power, to be exercised in the legal discretion of the municipality, which will not be interfered with by the courts, in the absence of manifest abuse.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 656.*]

3. Municipal Corporations (§ 385*)—Damnum Absque Injuria.

Where the grade of a street was lawfully changed pursuant to the municipal authority, so that an abutting owner was not entitled to recover damages for injury to his property therefrom, any damage resulting from the change was damnum absque injuria.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 925-928; Dec. Dig. § 385.*]

Appeal from Superior Court, Durham County; Devin, Judge.

Action by George T. Wood and others against the Duke Land & Improvement Company, to recover damages for a change of street grade. From judgment of nonsuit, plaintiffs appeal. Affirmed.

There was evidence on part of plaintiff tending to show that in 1912 plaintiff was the owner of a house and lot in the city of Durham, abutting on New street in said city the house being situated about ten feet from the line and four feet above the grade line of the street; that this New street was an established street in the city of Durham, having a recognized grade line, and plaintiff had turfed the slope down to tie street and had a fairly good driveway at tie side, permitting the entry of vehicles, e';c., into his yard; that in the fall of said year defendant company had cut down the grade of said street to the depth of three additional feet, leaving his house seven feet or more above the street, rendering access to same much more difficult, temporarily shutting off the entrance of vehicles, causing some of the turfing to fall, and entailing an expense of $500 and more in the reasonable effort to make the approaches to his home desirable, or even practicable.

On the part of the defendant company, it was shown that the grading in question was done pursuant to a resolution, formally passed by the city government of Durham having authoritative control of the matter; that the present grade line was established and the work done under the direction of the city engineer having the matter in charge under like authority, and although defendant had been active in the effort to have the resolutions passed, and, owning property on the street which would be benefited, had agreed to bear half the expense of the improvement, yet the work was done, as stated, entirely under the authority conferred by the city, under the direction of the city engineer, for the public benefit; and that the street, which before that time was an unpaved street and hardly passable in wet weather, was now, and by reason of this improvement, a desirable and attractive thoroughfare, affording the only passway for the public between Carr and Warren streets, both well populated for a distance of 1, 200 feet. There was evidence, further, on part of defendant, tending to show that the value of plaintiff's lot had been much enhanced by reason of suck improvement.

At the close of the testimony, on motions duly entered, there was judgment of nonsuit, and plaintiff excepted and appealed.

B. S. Skinner and Manning, Everett & Kitchin, all of Durham, for appellants.

Fuller & Reade, of Durham, for appellee.

HOKE, J. (after stating the facts as above). [1] It is well established in this state, and very generally held elsewhere, that, unless the Constitution or some statutory regulation otherwise provides, an abutting owner may not recover for damages to his property caused by changing the grade of an established street, when such change is done pursuant to proper municipal authority, and there is no negligence in the method or manner of doing the work. Harper v. Lenoir, 152 N. C. 723, OS S. E. 228; Dorsey v. Henderson, 148 N. C. 423, 02 S, E. 547; Jones v. Henderson, 147 N. C. 120, 60 S. E. 894; Wolf v. Pearson, 114 N. C. 621, 19 S. E. 264; Meares v. Wilmington, 31 N. C. 73, 49 Am. Dec. 412; McQuillan on Municipal Corporations, § 1975. The position referred to is usually made to rest upon the theory that any and all changes of this character are supposed to have been allowed for or released at the time of the original dedication of the street, and an abutting owner acquires and improves his property with full notice that such change may be made. Nichols on Power of Eminent Domain, §§ 81-83; Lewis on Eminent Domain (3d Ed.) § 134. In Nichols, supra, after laying down the rule that, "when a highway is raised or lowered in grade so that it may be made safer or more convenient for travel, the owner is not entitled to compensation, " the author says: "The true reason for the rule, stated in the heading of this...