City of Rawlins v. Jungquist

94 P. 464, 16 Wyo. 403, 1908 Wyo. LEXIS 31

• Court: Wyoming Supreme Court
• Decided: March 21, 1908
• Status: Published

Opinions

Scott, Justice.

This action was commenced in the district court of Carbon County by AVilliam Jungquist, the defendant in error, as plaintiff, against the City of Rawlins, plaintiff in error, as defendant, to recover for alleged damages to his property by reason of lowering the grade of streets adjacent thereto in accordance with an ordinance of the city.

From the record it appears that for many years Jungquist has been and is the owner of a lot of 24 feet frontage on Fifth street and extending back along Cedar street with the same width in the rear and to a depth of 132 feet. The lot was occupied by a large frame store building and basement and a small frame store building, the first being used in the hardware business which was conducted in and upon said premises by the plaintiff until some time in the month of January, 1902. That in 1901 and 1902 the grades and surfaces of the adjoining streets were altered and changed by an ordinance and made to conform thereto. Thereafter and on September 24, 1902, Jungquist presented to and filed a bill with the board of trustees of the City of Rawlins, in which he claimed damages in the sum of $1,629.65 to his property by reason of the change in the grade. Thereafter and on December 31, 1902, the board took up and considered the bill and allowed the sum of $277.65, which was paid to and accepted by Jungquist. On August 26, 1903, he presented to the trustees another verified bill for $3,400 for damages to the same property, $2,500 of which was for diminution in the value of his premises, and also $900 for damages by reason of loss of rents alleged to have been caused by the premises being rendered inaccessible by the city’s regrading Fifth and Cedar streets of that city. This bill does not appear to have been acted upon by the trustees.

The defendant pleaded as one of its defenses thát the payment to and acceptance by Jungquist of the sum of $277.65 allowed on his bill which he presented and wherein he claimed $1,629.65 as damages operated as a full compensation and a complete settlement of all matters, differences and damage by reason of any action of the City of Rawlins in grading the streets adjacent to his property.

The case was tried to the court without the intervention of a jury and the court found and rendered its judgment in favor of Jungquist and against the city in the sum of $2,222.35 and interest thereon at eight per cent per annum from August 26, 1903, and at the same time found and separately stated its findings of fact and conclusions of law. The city brings the case here on error.

1. It is contended, first, that the decision of the court is against the weight of the evidence and the law; second, that the court erred in its seventh finding of fact; third, that the court erred in its third conclusion of law.

It was in issue under the pleadings and the evidence whether prior to and at the time the damage complained of the plaintiff had made his sidewalk and premises to conform to a grade or any grade which had theretofore been established, and his right to recover at all was contested on that ground. Upon this question the court found adversely to the contention of the defendant, but as the evidence was conflicting and also in view of the conclusions reached upon another branch of the case we do not deem it necessary to discuss the question.

The seventh finding of fact is as follows: “That during the month of September, A. D. 1902, plaintiff presented an itemized account to the board of trustees of the City of Rawlins, setting forth the items of his -claim against the said city for damages to his said premises, caused by the grading of the streets adjacent thereto, and that on or about the 31st day of December, A. D. 1902, the said board of trustees in meeting assembled did allow -on said bill and account presented as aforesaid to said board of trustees, the following items, to-wit:

To tearing up and damaging- said stone pavement, making it unfit for further use.$189.65

To 26 days excavating to sidewalk grade. • 52.00

To relaying board walk in place of stone pavement. 36.00

Total amount allowed.$277.65

“And a warrant was issued payable to the plaintiff for said amount. That the balance of the items of the bill were rejected or not acted on by the said board of trustees.”

The third conclusion of law is as follows: “That the plaintiff is entitled to a judgment in his favor and against the defendant for the sum of twenty-two hundred and twenty-two and thirty-five hundredths ($2,222.35) dollars, the same being the amount of plaintiff’s damages in the sum of twenty-five hundred ($2,500.00) dollars, less two hundred seventy-seven and sixty-five hundredths ($277.65) dollars paid by defendant to plaintiff; and the plaintiff is entitled to interest thereon from the 26th day of August, A. D. 1903, at the rate of eight per cent per annum.”

The item for $900 was rejected by the court by its fourth conclusion of law.

The question here presented is whether the bill for damages presented in September, 1902, the action of the board and the acceptance of the amount allowed thereon by Jung-quist amounted to a complete settlement of the matters here sought to be litigated. That bill is in words and figures as follows

“City of Rawlins, County of Carbon, to William Jung-quist, Dr. Bill of damages to corner Fifth and Cedar streets, account grading.

1902. To tearing up and damaging of stone pavement, making it unfit for further use... .$ 189.65

To 26 days excavating to sidewalk grade.. 52.00

To relaying board walk in place of stone pavement torn up. 36.00

To 15 perches-of rock wall torn down.,.. 45.00

To lower house to grade...'. 877.00

To damages to upper story to date. 400.00

To damage to basement for month of July. 30.00

•$1,629.65”

Regardless of the items, it will be observed that the damage for which compensation is claimed is shown by the bill to have resulted from the same cause. It is designated as a bill for damages to the premises and it was so regarded by the court in its findings. There is no question of the identity of the property or the cause of the damage, and while the suit was not predicated upon any action of the board of trustees on this bill, yet plaintiff’s cause of action is inclusive of and for damages referred to in this bill. The court in its finding treated them as identical and credited the amount allowed on this bill upon the amount of damage which it found that the plaintiff had sustained. Upon the record the plaintiff is, therefore, in the attitude of having part of his demand allowed, accepting the amount so al-. lowed and suing for the balance.

Having presented his bill and accepted the amount allowed thereon and there being no express agreement that it should be in satisfaction in whole or in part of the cause of action, the presumption is that it was intended as full recom-p^nse foi- the damage sued for. (Bowman v. Ogden City, 93 Pac., 561.) To overcome such presumption it is not sufficient to show that one of the parties did not so understand it, but it is necessary to- show that the minds of the parties were in harmony on that question. Jungquist testified that he did not so understand it. Mr. O’Donnell, who was city clerk, testified upon this subject and said that the first three items of the bill were paid by the delivery of the warrant, that he would say that from the pencil check marks upon them, also that he did not know exactly whether those were the items which were allowed, but that added up they would make that amount, and further that “The board of trustees allow the bills, I draw the warrants.’.’ The record of the board of trustees shows that the bill came up for consideration on September 24, 1902, and was laid over, and in the record of the proceedings of the trustees under date of December 31, 1902, is the following entry: “Win. Jungquist, damages account grading, bill for $1,629.65, allowed $277.65.” The items of the bill were but elements and component parts of the damage sustained from a single cause. (27 A. & E. Ency. of Law, 143, 144.) The cause of action was single and not severable, and the fair meaning of plaintiff’s claim as presented by him is that it was a presentation of his entire demand, and that it was so understood by him is evident from his testimony. Upon cross-examination he was interrogated and answered as follows:

Q. This bill (referring to bill acted on by the trustees on December 31, 1902) was for the same damage, the same claim you are now suing on ?

A. No, sir, not at all. The grade had got nothing to do with it.

Q. It hasn’t anything to do with the damage you sustained ?

A. Yes, sir.

Q. Was this bill for $1,629.65 for damages you sustained by grading or not?

A. It was tearing up the sidewalk.

Q. Damage you sustained by tearing up the sidewalk?

A. A part of the damage, yes, sir.

Q. You expected when you got all that to put in some more for damage and keep it coming?

A. That’s all right. If they had settled the bill there wouldn’t have been anything- more said about it.

Q. If the city had settled the bill it would have paid you for all damages?

A. To that time, yes,'sir.

The trustees in considering the claim must necessarily have considered the question as to whether the plaintiff was entitled to any damages, and the amount of such damage, whether itemized or not, was for them to consider. We are unable to perceive any difference, so far as plaintiff’s rights are concerned, between presenting his bill in this form, and from presenting a claim for a lump sum and appearing before the trustees and showing what the elements of damage were and the component parts going to make up such lump sum. The tearing up and relaying the sidewalk was an element of damage occasioned by the lowering of the street to the grade or else plaintiff upon the case was entitled to no compensation therefor. That was an element to be taken into consideration in determining the amount of his damage. (Holley v. Torrington, 63 Conn., 426; Cook v. Ansonia, 66 Conn., 413; Pickles v. Ansonia, 76 Conn., 276; 27 A. & E. Ency. of Law, 141, 142.)

It may be that the damage to his property was greater than he supposed it to be at the time he presented this bill, but neither in the pleadings nor in the evidence does he seek on this ground to avoid the effect of his acceptance of the amount allowed thereon. As already stated, having accepted the part allowed on his bill, the presumption is that he accepted it in full settlement of his claim. The burden was upon him to show a different understanding. (Bowman v. Ogden City, supra.) The only thing upon which he relies is the fact of there being pencil marks on the first three items of the bill and that those items aggregated the amount allowed. How, when or by whom they were placed there is not shown, and, as already stated, the items were elements or component parts of damage resulting from a single cause. In Bowman v. Ogden City, supra, the court say: “In the presentation of his claim the plaintiff was not at liberty to split his demand. He could not present his claim only for a part, and, if it was allowed, accept it and then present another claim for another part.” The rule thus announced is, in our judgment, equally applicable to a case where a claim is allowed in part and rejected in part. In California it was held that when a plaintiff sues for a part of an entire demand and recovers judgment therefor that that constitutes a good plea in bar to a future action for the balance of the same entire demand. (Zirken v. Hughes, 77 Cal., 235.) The acceptance of the part allowed would be a good defense to an action for the balance. (Brick v. Plymouth County, 63 Ia., 462; Commissioners v. Seawell, 3 Okla., 281, 287.) In the former case Brick, sued the county to recover for professional services rendered to persons afflicted with smallpox and who were confined in a' pest house. A part of the bill was allowed by the county and accepted by Brick, and the balance having been rejected suit was brought to recover the amount so rejected. The court say: “It is claimed by counsel for appellant that the acceptance of the allowance made by the board of supervisors is a bar to an action for the balance of the bill which was rejected by the board. The evidence shows that the board of supervisors investigated the claim, allowed a part of it and rejected the balance upon what appears to us good and sufficient grounds. There is no pretense that the plaintiff, when he received the amount allowed him, did not know that the balance had been rejected. Indeed, orders of rejection were written on the bill when it was introduced in evidence in the court below; and the plaintiff in his testimony as a witness, did not deny that he was fully aware of the action of the board of supervisors when he received the allowance made him.”

In the case before us, while it is true that the defendant testifies that the warrant was in effect a part payment of the bill, yet he nowhere testifies that that was the understanding when he received and cashed the warrant. While there may be a seeming discrepancy between Brick v. Plymouth County, supra, and Fulton v. Monona County, 47 Ia., 622, the court, in the opinion in the former case, say: “It is contended, however, that a different rule was announced in Fulton v. Monona County, 47 Ia., 622. In that .case it was not shown that the claimant received the part allowed on the claim with knowledge that the balance had been rejected, and the case is made to turn upon this fact.” In Wapello Co. v. Sinnamon, 1 G. Greene, 413, a claim had been presented to the county, and part of it allowed and the balance rejected. The court said: “If the plaintiff in this case presented his claim for allowance, and it was in part allowed by the board and he accepted the amount thus allowed, he should not be permitted to afterward sue for the balance. The acceptance of the part allowed should be considered satisfaction for the whole.”

In the case before us the claim is for unliquidated damages. The amount of compensation to which the plaintiff was entitled is neither fixed by statute nor by a.precedent contract. As already stated, his claim for damages resulted from a single cause. In 1 Ency. Pl. & Pr., at page 148, it is said: “It is a well established rule of law that a single cause of action cannot be split in order that separate suits majr be brought for the various parts of what really constitutes but one demand.” It is further said in the same volume, at page 150, that: “There is no precise rule for determining what constitutes an entire cause of action * * *. It depends upon the facts of each particular case, and is often a difficult question. Certain rules, however, may be formulated.” One of the tests which is frequently given is whether the evidence necessary to prove one cause of action would establish the other. (Hill v. Joy, 149 Pa. St., 243; Bigelow on Estoppel, 44; Lyon v. Miller, 24 Pa., 392; Com. v. Trimmer et al., 84 Pa., 65, 69; Richardson v. Opelt, 69 Neb., 180, 189.) In Stark v. Stair, 94 U. S., 477, 485, it is said: “It is undoubtedly a well settled principle that a party seeking to enforce a claim, legal or equitable, must present to the court, either by the pleadings or proofs, or both, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand and prosecute it by piece meal, or present only a portion of the ground upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There would be no end to litigation if such a practice were permissible. • But this principle does not require distinct causes of action, that is to say, distinct matters — each of which would authorize by itself independent relief, to be presented in a single suit, though they exist at the same time and might be considered together.”

The rule with reference to damages in the exercise of the right of eminent domain is, we think, peculiarly applicable in this connection. In the exercise of that right there must be (1) a lawful seizure of the property, and (2) just compensation to the party whose property is taken. When a part)»- sues for damages in such a case his right to recover is based upon the wrongful act of denjdng just compensation for the injury and the action is treated and spoken of in the decisions as for a wrongful act. It is said in Sutherland on Damages (3d Ed.), Sec. 1065, as follows: “The word compensation imports that a wrong or an injury has been inflicted and must-be redressed in money.” We are not dealing with the subject of a continuing trespass. The act complained of was a completed act. All of the damages resulting from that act were recoverable in a single action. At Sec. no, id., it is said: “The principle is settled beyond dispute that a judgment concludes the rights of the parties in respect to the cause of action stated in the pleadings, on which it is rendered, whether the suit embraces the whole or only a part of the demand constituting the cause of action. It results from the principle, and the rule is fully established, that an entire claim arising either upon a contract or from a wrong cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim the pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits of either will be available as a bar in the others.” The same author says in Sec. 120, id.: “In the application of the rule that all the damages which pertain to a cause of action, without reference to the time when they actually accrue, are entire and cannot be recovered by piece meal by successive actions, it is frequently necessary to take into consideration damages which have not been actually suffered either at the commencement of the suit or at its trial; for otherwise there would be a very inconvenient postponement of that class of actions or a renunciation of a large part of the compensation due to the injured party. When a cause of action accrues there is a right, as of that date, to all the consequent damages that will ever ensue. They are recoverable in one action if they can be proved, and only one can be maintained; it may be brought at any time after the accrual of the right.” In speaking of damages in eminent domain, in 15 Cyc., at page 689, it is said: “It is to be observed that the damages sustained by the owner are a unit, although composed of integral parts, viz.: the value of the land and the injury to the remaining part.” At page 703, id., it is also said: “The measure of damages to an abutting owner caused by a change of grade of a street or highway is generally held to be the difference between the value of the abutting property before the change of grade and its value therafter * * *. Depreciation in the rental value of the property, and interference with the right of ingress ¡and egress are elements to be considered in estimating such damages.” The text is supported by an abundance of authorities cited in the foot notes.

In Elliott, Roads and Streets, at page 345, it is said: “The change of grades is a permanent matter and all re-suiting injury must be recovered in one action, for the property owner cannot maintain successive actions as each fresh annoyance occurs.” The author cites in support of the text: City of Lafayette v. Nagle, 113 Ind., 425; City of Vernon v. Voegler, 103 Ind., 314; Central Branch R. R. Co. v. Andrews, 21 Kan., 702. The author further says, on the same page, that this rule “is in strict harmony with the rule which prevails, and has long prevailed, in cases where property is seized under -the right of eminent domain. Grades iare changed under a sovereign right closely akin to the right just named and it is in accordance with established practice to apply to such cases the rule which governs analogous cases.” The change of grade was an act done by the municipal corporation under a claim and color of right. It was an act permanent and enduring in its character. In City of Lafayette v. Nagle, supra, damages were sought by an abutting lot owner for changing the grade of an alley. It is there said that there is a plain distinction between a mere transient trespass and an act which both parties treat as of an enduring character. The court say: “In such a case as this, and in all oases where the thing done is done under color of legal authority, and is permanent, the wrong doer, while he may not be vexed with many actions, must pay full compensation to the person he has injured. But the public has an interest in these matters, and that interest demands that when one action will fully settle the controversy and bring the wronged person full compensation one action only can be maintained * * *. Damages to land arising from one permanent wrong, committed under color of legal right, cannot be collected in shreds and patches as each new loss arises, but must be recovered in a single action. It -is not the damages alone that constitute the cause of action, for a cause of action is composed of both injury and damages. If there is a single injury — and there can be only a single injury where the thing that causes it is permanent — there can be only one action, for a single injury cannot be dissected into many parts, and thus made to yield a progeny of actions, limited only by the possibility that a time may come when no new inconvenience or loss can be suffered * * *. When the thing done is permanent the injury is not repeated, and when there is no repetition of an injury there cannot be successive actions.”

The settlement of the plaintiff with the defendant without fraud or deception partook of the nature of an adjudication of the differences between them growing out of regrading the streets adjacent to his property. The same proof would be necessary to show the cause of the damage to enable him to recover a jpart or all of the damage either in one or in separate suits, and the damages sustained were but a unit, although composed of integral parts. The plaintiff submitted his claim to the trustees and invoked their action thereon and accepted the amount which they allowed. He was not bound by their action. He could either accept the amount allowed him or reject it and bring suit upon his claim and litigate it as an entirety. He could not accept and retain the amount allowed and maintain an action for the balance in the absence of an express understanding that it was only a partial allowance.

In Hunt v. Franklin County Commissioners, 100 Me., 445 (62 Atl., 213), the plaintiff was present when the board of county commissioners passed upon his itemized bill and allowed a less amount than he claimed; he accepted this amount and by certiorari brought the case before the court for review. The court say: “The petitioner urges that the allowance of a lump sum for his itemized bill less than the full amount was illegal. That the commissioners should have allowed or disallowed each item and should be compelled to do so now, in order that he might bring the disallowed item before the court. On the other hand, the respondents claim that certiorari is not the proper remedy for the petitioner.

“We have no occasion to consider either of the above contentions, since a complete answer to the petition is made by the fact that with knowledge that $100 was allowed him in full for his whole bill, he drew that amount from the treasury and has not returned it. He cannot now reopen the matter. (Perry v. Cheboygan, 55 Mich., 250 (21 N. W., 333); Brick v. Plymouth County (Ia.), 19 N. W., 304; Murphy v. U. S., 104 U. S., 464; 26 L. Ed., 833.) As well might a plaintiff who had collected judgment in a common law action for less than his claim stated, afterward maintain an action on the same claim.” In the case before us neither before the commencement of his suit nor at any time during the progress of the trial, though informed of the nature of the defense, did the plaintiff return or offer to return the amount allowed and accepted by him. By his conduct he affirmed the action of the trustees, but contends that it was a part payment only. The evidence of the city taken in connection with the presumption accompanying it cast upon him the burden of showing» that such payment was so understood and intended. The evidence wholly fails to support such contention.

We are of the opinion that the decision of the court is against the evidence, under the law applicable to it, and that the court erred in its seventh finding of fact and its third conclusion of law.

The judgment will, therefore, be reversed and the cause remanded to the district court with directions to enter judgment for the defendant, the plaintiff in error here.

Reversed.

Potter, C. J., and Beard, J., concur.