CHAPTER XVIII. OF THE USES TO WHICH HIGHWAYS AND STREETS MAY BE 195. Changes of grade. 196. Dissenting views. 197. Statutes allowing damages for changes of grade. 198. Restoring property to former condition. 199. Change rendered necessary by railroad track. 200. Use of streets by railroads. 201. Railroad an improved method of use. 202. Legislative control over streets and highways. 203. Where the fee of streets is in the city or in the public. 204. Where the fee is in the adjoining owner. 205. Horse-railroads. 206. Easement of adjoining owner in the street a valuable property. 207. Inconvenience of access- Embankments in streets ingress and egress to property. - · Obstruction of § 195. Changes of grade.—Land taken for a road or street is taken for all the purposes to which said street may be properly put, and subject to any changes or improvements the public authorities may see fit to make. The public authorities may determine that the grade of the street should be lowered or raised; and although injury may result to an individual from this change, yet no damages are recoverable.1 The damage resulting from a change of grade is consequential, and, as it is a consequence of the exercise of a power granted by the state to the public authorities controlling 1 Schattner v. Kansas City, 53 Mo. 162; Matter of Furman St., 17 Wend. 649; Wilson v. Mayor of New York, 1 Denio, 595; Waddell v. Mayor of New York, 8 Barb. 95; Reock v. Newark, 33 N. J. L. 129; Plum v. Morris Canal Co., 10 N. J. Eq. 256; Carr v. Northern Liberties, 35 Pa. 324; Green v. Reading, 9 Watts, 382; McLauchlin v. Charlotte R. R., 5 Rich. L. 583; Roll v. Augusta, 34 Ga. 326; Rome v. Omberg, 28 Ga. 46; Humes v. Mayor, 1 Humph. 403; Matter of Beale St., 39 Cal. 495; Shawneetown v. Mason, 82 Ill. 337. the streets, the public authorities are not responsible, unless the power has been abused by an unskilful execution.1 People who buy lots are presumed to buy them subject to any changes that may be made in the highway. The unequal burdens which owners have to bear can only be equalized by legislation. An ordinance establishing a certain grade is not a contract between the city and those building, so as to entitle them to damages on a change of grade. All damages for changes of this nature are presumed to have been considered in the original laying-out. A city council have no power to direct the cutting-down of one street to furnish soil to fill up another street. There must be an ordinance for the improvement of the street from which the soil is taken. Some cases indicate that the city would not be responsible for changes in the streets, affecting adjoining owners, although an individual proprietor adjoining, making similar improvements, might be; and that there could be 1 Taylor v. St. Louis, 14 Mo. 20; St. Louis v. Gurno, 12 Mo. 414; Smith v. Washington, 20 How. 135; Rounds v. Mumford, 2 R. I. 154; Radcliff's Executors v. Mayor of Brooklyn, 4 N. Y. 195; Matter of Ridge St., 29 Pa. 391; O'Connor v. Pittsburgh, 18 Pa. 187; Meares v. Wilmington, 9 Ired. L. 73; White v. Yazoo City, 27 Miss. 357; Simmons v. Camden, 26 Ark. 276; Macy v. Indianapolis, 17 Ind. 267; Snyder v. Rockport, 6 Ind. 237; Lafayette v. Spencer, 14 Ind. 399. For an unauthorized change in grade there is an action. In such action, the plaintiff must show that the action of the city was not authorized by charter, or was not in accordance with the provisions of the charter. Dore v. Milwaukee, 42 Wis. 108. For negligence in making change there is an action. Hendershott v. Ottumwa, 46 Iowa, 58. Skinner 2 Callender v. Marsh, 1 Pick. 417; Rounds v. Mumford, 2 R. L. 154; v. Hartford Bridge Co., 29 Conn. 523; Louisville R. R. v. Brown, 17 B. Mon. 763. 3 Goszler v. Georgetown, 6 Wheat. 593. Skinner v. Hartford Bridge Co., 29 Conn. 523; Radcliff's Executors v. Mayor of Brooklyn, 4 N. Y. 195; Fellowes v. New Haven, 44 Conn. 240. 5 Delphi v. Evans, 36 Ind. 90. Earth may be removed from a street in the legitimate process of grading the streets, but may not be removed simply for the purpose of filling up other streets. Mayor of Macon v. Hill. 58 Ga. 595. If the change in the grade of the street is for the purpose of making a levee, to prevent a river from overflowing a town, and the grade is raised for such purpose only, then, under the Illinois Constitution of 1870, the owners of property damaged thereby are entitled to just compensation. Shawneetown v. Mason, 82 Ill. 337. 6 Alexander v. Milwaukee, 16 Wis. 247. no claim, on the part of the owner, for the lateral support of the neighboring soil.1 These cases must proceed on the theory that, in the condemnation of the land for a street, such use was contemplated and paid for in the assessment. A city may be enjoined from establishing a grade and doing work upon a street if the proposed grade and work would not be beneficial to the public, but would render the street impassable and the place to which it leads inaccessible. Such act is a perverse abuse of the power of the city council, and the establishment of a nuisance, instead of a public highway.' § 196. Dissenting views. There have been several decisions protesting against the rule laid down in the last section; but the law is too well settled, now, to further consider the question. The legislature can be appealed to, and a certain remedy given. The Supreme Court of Ohio, on general principles, have declared that damages must be allowed for injury to improvements already made, caused by changes of grades. Unimproved property must conform to grades afterward established, for the reason that the owner is presumed to purchase in view of such changes. Changes made subsequent to the improvements are for the benefit of others, and others should pay for them, and not one alone. The doctrine is conceded to be proper in England, where the acts of Parliament are supreme, but as inapplicable to this country, governed by written constitutions." One decision in Illinois, that of Nevins v. Peoria, goes a long distance in support of the same doctrine, holding that the municipality is the proprietor of the streets, and cannot use its property to the detriment of an adjoining property 1 Mitchell v. Rome, 49 Ga. 19. Armstrong v. St. Louis, 3 Mo. App. 151. 3 Crawford v. Delaware, 7 Ohio St. 459; McCombs v. Akron, 15 Ohio, 474; Akron v. McComb, 18 Ohio, 229; Youngstown v. Moore, 30 Ohio St. 133. See also dissenting opinion of Judge Adams, in Thurston v. St. Joseph, 51 Mo. 510, and of Judge Birch, in St. Louis v. Gurno, 12 Mo. 414. • 41 III. 502. owner to any greater extent than could a private individual. Neither a private individual nor the city can turn floods of unwholesome surface-water, or sewer-water, upon adjoining property without making compensation for the use, which, in fact, constitutes a taking. If the raising of the grade destroys drainage which formerly existed, the city would be liable for failure to provide means of escape for surfacewater.1 § 197. Statutes allowing damages for changes of grade. - On account of the hardship resulting from the refusal of damages for injuries resulting from changes of grades, statutes have been passed, in a number of states, allowing damages for changes of grades. These statutes have not always been construed with liberality. A statute allowing damages for an alteration of a street has been held not to justify damages for digging down an existing street. The assessment of damages is similar to that for damages for laying out highways. It will include damages done by 1 Ross v. Clinton, 46 Iowa, 606. 2 Columbus v. Woollen Mills, 33 Ind. 435. 3 Hovey v. Mayo, 43 Me. 322. The Tennessee Code, 28 1392, 1393, 1394, authorize any owner of property within corporate limits, who desires to build on or improve such lot, to apply to the corporate authorities, and require such authorities to fix and establish the grade of the street or streets on which the applicant proposes to build, that he may construct his improvements so as to conform to the grade established. It is provided that the authorities shall pay such applicant full damages that he may sustain in consequence of any subsequent change of grade of such street by said authorities, and that "said corporate authorities shall also pay to any citizen who has made permanent and valuable improvements on his property, situated on a street or streets the grade of which said authorities have neglected to establish, any material damage he may sustain in consequence of any grade which they may subsequently establish." In the case of Mayor v. Nichol, 59 Tenn. 338, the court say: "Such statutes are to be liberally construed in favor of the right of a citizen to be reimbursed for damages done to his property by city authorities, occasioned by works for the advantage of the general public. The citizen whose property is thus injured ought not to be required to bear the entire burden, the benefits of which he shares, perhaps, very slightly in common with other inhabitants of the city, the improvements frequently being of no personal advantage to him whatever." Sawyer v. Keene, 47 N. H. 173. 6 change of grade of a sidewalk. Sidewalks are a part of the street, and the whole damages may be assessed together.1 The action is based alone on the statute, which is different from the common law,' and hence the statutory remedy is exclusive, and is to be strictly construed. A statute that allowed damages to improved property could not be extended to cover damages to unimproved property, but would extend to damages to property improved, as well as to the improvements thereon. In assessing damages for contemplated flooding by surface-water, the damages are covered for flooding afterwards occurring, and they are not to be considered separately. The right to compensation is confined to the owner of land adjoining the street which is repaired. There is no right to compensation beyond what the statute gives, and no damages can be had for injury occasioned by repairing other streets. The later constitutions which require compensation for property taken or damaged for public use are construed to include damages for changes in grades, and for such changes an action will lie. Damages of this nature are not due until the act of changing is completed. This differs from the case of laying-out of a highway, which appropriates the land, while the other is a declaration of an intention to use the land in a particular way." Damages, when allowed for changes in grades of streets, will be granted for changes in any portion of the width of the street. It is not essential to a claim of damages that 1 Barker v. Taunton, 119 Mass. 392. 2 Brown v. Lowell, 8 Metc. 172; Fernald v. Boston, 12 Cush. 574: Elder v. Bemis, 2 Metc. 599; Reock v. Newark, 33 N. J. L. 129. 3 Cole v. Muscatine, 14 Iowa, 296; Dore v. Milwaukee, 42 Wis. 108. Terre Haute v. Turner, 36 Ind. 522; Snyder v. Rockport, 6 Ind. 237; Burlington v. Gilbert, 31 Iowa, 356; Cole v. Muscatine, 14 Iowa, 296; Dalzell v. Davenport, 12 Iowa, 437; Matter of Beale St., 39 Cal. 495. 5 Dalzell v. Davenport, 12 Iowa, 437. • Hubbard v. Webster, 118 Mass. 599. Wilbur v. Taunton, 123 Mass. 522. Elgin v. Eaton, 83 Ill. 535 (1877). Page v. Boston, 106 Mass. 84; Brown v. Lowell, 8 Metc. 172. |