Johnson v. City of Parkersburg

16 W. Va. 402, 1880 W. Va. LEXIS 35

• Court: West Virginia Supreme Court
• Decided: April 3, 1880
• Status: Published

Opinion

Johnson, Judge,

delivered the following opinion of the. Court:

Independent'of the statute set out in the declaration, does the plaintiff in his declaration set up a cause of action ? Hard as it seems, the sweeping current of both English and American decisions, wholly unbroken except by the Supreme Court of Ohio, is, that at common law a municipal corporation is not liable for consequential damages arising from a change in the grade of a street, to one whose land is not taken, although his improvement has been made on his lot in conformity to a former grade; that the municipal corporation, as trustee for the public, has the right to change the grade of the streets whenever in its opinion the public good requires it, and if the owners of adjoining property are injured by raising or depressing the street, no action lies againstthe corporation ; it is damnum absque injuria. It is unnecessary to cite the authorities upon this proposition. For a collection of them see Cooley Con. Lims. 542 and notes.

Cases have sometimes arisen, in which it was a nice question, whether the injury done to the property was not of such a character as to constitute a “taking” thereof. In the eases of Pumpelly v. Green Bay Co., 13 Wall. 180, and Eaton v. R. R. Co., 51 N. H. 504, the plaintiffs’ lands were flooded in such a way as to make them worthless to the owners, the injury being permanent; and the courts held, that in these cases the lands were taken. Many cases have arisen where under the common law it was held, that municipal corporations were liable for throwing surface-water on adjoining lots while grading their streets. See a review of the cases on this subject in Gillison, trustee, v. City of Charleston supra. But there is a large class of cases like the case before us, where it has been uniformly held at common law, that the plaintiff had no right of action. Judges have frequently regretted that the law was so laid down, and have pointed out the remedy for the injustice, but under the common law were themselves powerless to prevent it.

Parker, Chief Justice, in Callender v. Marsh, 1 Pick. 433, said : “ Cases apparently hard will occur; the present is such a one. The plaintiff’s house has been standing twenty years, and he had reason to expect that in any contemplated improvement in the streets his lia-ability to expense would have been attended to by the city authorities. * * * If the reducing or raising of streets, which have been laid out for a definite number of years, and on which houses have been erected, should be made a matter of adjudication like that of altering, widening or turning a street, subject to the same provision for damages, the mischief would be cured; for although theoretically all this may be considered as determined, when the street is originally laid out, yet practically there may be cases, where this just provision has been overlooked. * * * That it might be proper for the Legislature by some general act to provide, that losses of the kind complained of in this suit should bo compensated by the town or city, within which improvements may be made for the public good, or by the owner of land, which may be particularly benefitted, is not for us to deny; but without such legislative provision we have no authority upon the subject, it being clear that by the common law, as well as by our statutes, the defendant in this action is not liable to damages. In no case can a person he liable to an action as for a tort for an act, which he is authorized by law to do ; and, as the statute authorizes surveyors to amend roads and streets by digging them down and building them up, when necessary, the Legislature not being prohibited by the Constitution from enacting such a statute, we think the defendant is entitled to judgment.”

O’Connor v. Pittsburgh, 18 Penn. St. 187, was an action of trespass on the case brought by Michael O’Connor, Roman, catholic bishop of Pittsburgh, for the use of the Roman catholic congregation of St. Paul’s church, Pittsburgh, against the mayor, alderman, and citizens of Pittsburgh. The church was much damaged, aye, ruined, by lowering the grade of the street. The jury found a verdict for $4,000.00 damages for plaintiff, notwithstanding which Lowrie, J., entered judgment on a reserved question for the defendants. In the Supreme Court Gibson, C. J., said : “We have had this cause re-agued in order to discover, if possible, some way to relieve the plaintiff consistently with law; but I grieve to say we have discovered none. To the commonwealth here, as to the king in England, belongs the franchise of every highway as a trustee for the public; and streets regulated and repaired by the authority of a municipal corporation are as much highways as are rivers, railroads, canals, or public roads laid out by the authority of the quarter sessions. * * * * It must be admitted, that while it is inequitable to injure the property of an individual for the benefit of the many, it will be impossible for a corporation to bear the pressure of successive common law actions for the continuance of a nuisance, each verdict being more severe than the preceding one. The modification of the remedy would be for the Legislature, which can turn compensation for a permanent detriment into the price of a prospective license; but to attain com-píete justice, every damage to private property ought to be compensated by the State or corporation that occasioned it, and a general statutory remedy ought to be provided to assess the value. The constitutional provision for the case of private property tahen for public use extends not to the case of property injured or destroyed ; but it follows not that the omission may not be supplied by ordinary legislation. No property was taken in this instance; but the cutting down of the street, consequent on the reduction of its gi-ade, left the building useless, and the ground on which it stood worth no more than the expense of sinking it to the common level. The loss to the congregation is a total one, while the gain to the holders of property in the neighborhood is immense. The Legislature that incorporated the city never dreamt that it was laying the foundation of such injustice; but, as the charter stands, it is unavoidable.'”

There is in the written constitutions of all the States ample protection against the talcing of private property for public use without just compensation. But observation teaches us, that often private property is rendered almost, if not quite, valueless, by public improvements where not one foot of it is tahen. This was the case, as the court informs us, in O’Conner v. Pittsburg; and yet at common law there was absolutely no redress for the sufferer. A man owns a little strip of land near the line of a proposed railroad; there may be land condemned up to his line, the road being located on the land of his neighbor; the road benefits his neighbor, because he has a large farm and the conveniences are considerable to him, while the small strip is almost, .ruined. The one gets damages for the land taken, but the other gets no damages for the injury inflicted. A municipal corporation makes a change in the grade of a principal street. One man owns a beautiful mansion on the summit of the hill. A change in the grade would be a great benefit to the whole city, and particularly to the owners of lots on said street, who have not yet built thereon ; the council of the city determine to make the change; a cut up to the very line of the man’s lot on the summit is made fifteen feet deep; everybody in the city except that man is ben-efitted, but his property is ruined; he cannot use it as it is, and if it were practicable to lower his brick mansion, it would cost him more than it is worth. The common law says he is without remedy. His property was not taken for public use ; but was it not damaged for public use? and is not the injury the same in character, if not in extent, as if it had been actually taken? Why should one man suffer all the loss for the benefit of the public ? If the change was necessary for the public good, does not justice require that the public, for whose good it was made, should pay for the damages occasioned by it ? This rule puts all the citizens upon an equality; the common law rule makes the one suffer for the many.

It was to prevent this manifest injustice, that section nine of the Bill of Rights in the Constitution of West Virginia was inserted therein and adopted by the people. That section is:

“ Private property shall not be taken or damaged for public use without just compensation ; nor shall the same be taken by any company incorporated for the purpose of internal improvement, until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged, for public use, or for the use of such corporations, the compensation to the owner shall be ascertained in such manner as may be prescribed by general law. Provided, that when required by either of the parties, such compensation shall be ascertained by .an impartial jury of twelve freeholders.”

The effect of this section is, to declare that a man’s property-rights shall not be invaded for public use unless he receives just compensation, and that his right of property shall not be invaded by a damage inflicted upon it, though the property is not taken, as .well as that the corpus of the property itself shall be protected from such

Section thirteen of article two (the bill, of rights) of the Constitution of Illinois adopted in 1870, is as follows : “ Private property shall not betaken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. The fee of laud taken for railroad tracks, without consent of the owner thereof, shall remain in such owner, subject to the use for which it was taken.” The Supreme Court of Illinois has repeatedly held, that this clause of the Constitution extended protection to property not actually taken for public use, but damaged for such use. The City of Pekin v. Breton, 67 Ill. 477; City of Pekin v. Winkle, 77 Ill. 56; City of Bloomington v. Brokaw, Id. 194; City of Shawneetown v. Mason, 82 Ill — ; City of Elgin v. Eaton, 83 Ill. 535. The facts of the last case were very similar to those in the case atbai’, and Walker, Judge, who spoke for the whole court, after quoting from the Constitution, that “ private property shall not be taken or damaged for public use without just compensation,” said : “Now this was private property and the improvement vras being made for public use; and if the property was damaged thereby, the appellee is entitled to just compensation for such damage.”

The cases cited from Illinois, by the counsel for the city in his argument, which were decided since the case in 83 Ill., all arose before the adoption of the Constitution of 1870. In Transportation Company v. Chicago, 99 U. S., cited by counsel for the city, and which arose in Illinois, and was decided by the Circuit Court of the United States for the Northern District of Illinois, Strong, J., said : “ The present Constitution of Illinois took effect on the 8th day of August, 1870, after the work of constructing the tunnel had been substantially completed. It ordains that private property shall not be taken or damaged for public use without just compensation. This is an extension of the common provision for the protection of private property; but it has no application to this case, as was decided in Chicago v. Rumsey.” The reason why it was held in Chicago v. Rumsey, 87 Ill. 348, that the Constitution of 1870 had no application to the case, was because, as the court say, “ So far as the city caused, or could cause, this act to be done (the act complained of), it did so, not only before the adoption of the present Constitution, but even before the delegates were elected who framed that instrument.”

S7llabus*■ It is clear then that if a municipal corporation, in changing the grade by raising or depressing its streets, permanently damages the private property of an individual, without acquiring the right to do so, and if demanded, by paying just compensation therefor, violates section nine of the Bill of Bights, which declares, that “private proper-ty shall not be taken or damaged for public use without just compensation.” But it is insisted by counsel for Parkersburg that the section of the Constitution just quoted, does not operate ex proprio vigore, and that, so far as it refers to damaging property, no statute has been passed putting it in operation, and until so put in force by legislation the common lawprevails, and it is not liable for damages. It is true that no such statute has yet passed, as chapter one hundred and fourteen of Acts of 1875, only provides for the ascertainment and payment of damages to the residue of a tract of land where a part has been taken. As far as the city is concerned it is very true, that the second clause of the section is not self-executing, because it says, “ where private property shall be taken or damaged for public use or for the use of such corporations, the compensation to the owner shall be ascertained in such manner as may be prescribed by general law; Provided that, when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders.” It required legislation to' carry out this clause of the section. See Supervisors of Doddridge Co. v. Stout. 9 W. Va. ; Chahoon’s Case, 20 Gratt. 733; Lamb & McKee v. Lane, 4 Ohio St. 167; Watson’s ex’r v. Trustees of Pleasant Township, 21 Ohio St. 666. In the last cited case, the statute provided, that the trustees of the township might locate ditches or drains upon lands adjoining or lying near a public road, whenever in the judgment of the trustees such ditches or drains are necessary for the benefit of the road, but makes no provision for compensation to the owner in money to be assessed by a jury for the land appropriated for such ditches or drains. The court held, “ that for want of such provision an appropriation of land for a ditch or drain under the act would be in contravention of section nineteen of article one of the Constitution, which provides that when private property is taken ‘for the purpose of making or repairing roads * * * a compensation shall be made to the owner in money; * * * and such compensation shall be assessed by a jury.’ The Constitution in this particular does not execute itself.” But they did not hold, that, because no provision had been made whereby they could take the property by paying a just compensation for it, therefore they could take it nevertheless, and be exempt from action. The court perpetuated an injunction restraining them from tahing it at all. The private right of the individual was secure under the Constitution. That part did execute itself. It contained a positive inhibition on the part of the Legislature to pass any law, by which an individual’s private property could be taken or damaged for public use without compensation.

In Pumpelly v. Green Bay Co., and Eaton v. B. C. & M. R. R. Co., supra, the parties were acting under grant from the Legislature of the States respectively; but in both cases it was held, that they could not in making their improvements invade the rights of private property by “taking” the same without just compensation, and that in doing so they were liable to an action. I have nowhere seen it contended that the clause of a Constitution, which declares, that “private property shall not be taken for public use without just compensation,” requires legislation to put it in force. It .has always been regarded as self executing. It is' a limitation, not only upon the rights of individuals and corporations, but also upon the Legislatures of the States.

When the words “or damaged” were incorporated into the Constitution of West Virginia, in addition to the words “private property shall not be taken” the effect was as effectually to protect private property from being damaged for public use without just compensation as to prevent it from being taken for the same purpose without just compensation. So the Supreme Court of Illinois held in the case of The City of Elgin v. Eaton, supra.

Syllabus 2. In that case the court say : “In this case the city entered upon the improvement of the street after the adoption of our present Constitution, and before the passage of our eminent domain law. The rights of the parties were then fixed, an.d cannot be altered by subsequent legislation; and the right to recover damages was given by the Constitution. The first clause of section nine of our bill of rights, exproprio vigore protects the private property of an individual from damage for public use without just compensation.” There is nothing in the position we have taken, that is in conflict with the principles laid down by this Court, in Supervisors of Doddridge county v. Stout, supra, and Speidel & Co., v. Schlosser et al., 13 W. Va., 686, or the principles of the decision of the Supreme Court of the United States in Groves v. Slaughter, 15 Pet. 449. The principles of these cases are readily distinguishable from the principles we hold in this case. But it is insisted that the Legislature has provided no remedy in a case like this. If a new right is created by statute and no remedy prescribed for the party aggrieved by the violation of such right, the court upon-the principle of a liberal or comprehensive interpretation of the statute, will presume that it was the intention of the Legislature, to give the party aggrieved a remedy by a common law action fora violation of his statutory right, and he will be permitted to recover in an appropriate action. Sedgwick on Stat. and Const. Law 92, and cases cited; 2 Coke’s Inst. 74, 118; Bacon’s Abr. 16; Clark v. Brown, 18 Wend. 220. Whenever a statute creates a right, or a duty or obligation, then, although it has not in express terms given a remedy, the remedy which by the common law is properly applicable to that right or obligation, follows as an incident, 1 Addison on Torts 49 and cases cited. The court said in Tapley v. Forbes, 2 Allen 24, that it is a well settled and familiar principle that “if a right is conferred by statute without affording a specific mode for its enforcement, a party may resort to any common law action which will afford him an adequate and appropriate means of redress.” To the same effect is Knowlton v. Ackley, 8 Cush. 97. In Stearns v. Atlantic and St. Lawrence R. R. Co., 46 Me. 114, May, J., in delivering the opinion of the court, said;

“The first objection now raised is, that this action cannot be maintained, because no remedy is given by the statute creating the liability, nor by any other statute, nor by the common law. That the statute upon which the plaintiffs base their right to recover gives to them a right to compensation for the injury they have sustained is not denied, Stat. of 1842, ch. 9, sec. 5 ; but it is insisted, that the creation of such a right is wholly unavailing to the party injured, unless the same statute or some other,also provide some form of remedy. But such is not the law. Some form of action may always be maintained for a violation of common law right; and it is often said to be the pride of the common law, that it furnishes a remedy for every wrong. In the absence of any authority to the contrary, it is not perceived why a legal right to compensation for actual damage sustained, even though such right depended wholly upon a statute, is not as worthy of protection in a court of law as any common law right. The common law is said to be, in fact, nothing but the expression of ancient statutes; but whether this be so or not, the injury for the violation of a statute right is as real as are injuries which exist only by the common law. If a man has a right, he must, as has been observed in a celebrated case, have a means to vindicate and maintain it, and a remedy, if he is injured in the exercise and enjoyment of it; and, indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. Ashby v. While, 2 Ld. Raym. 953; Westmore v. Greenbank, Willes 577, cited in Brown’s Maxims 147. To deny the remedy is therefore in substance to deny the right. And it makes no difference whether the right exists at common law or by statute. Hence the familiar maxim quoted by the counsel in defence, that { wherever the statute gives a right, the party shall by consequence have an action to recover it.’ The authorities cited in defence will be found to be in harmony 'with this maxim. The rule is now understood to be well settled, that when a statute gives a right, or forbids the doing of an injury to another, and no action be given therefor in express terms, still the party shall have an action therefor. Brown’s Maxims, 149, 150, and cases cited. The cases cited for the plaintiff not only sustain the same position, but also show that where no other remedy is provided, the proper remedy is a special action on the case.”

Syllabus 3. A constitutional prohibition forbidding an injury to the property of a citizen is certainly as effective as a statute framed for the same purpose; and we have seen that such a prohibition is self-executing. As we have also seen, before the adoption of our present Constitution, no compensation could be recovered for consequential damages inflicted upon the private property of an individual, by work done for the public good, in raising or depressing the streets in a city. It was damnum absque injuria, that is, an injury without wrong. It was not contrary to law to thus damage private property, and it was nol therefore a wrong, and the party was without redress. But it is different now; the Constitution de-Bounces itas a wrong against the individual now, to dam- ' age his private property without just compensation, and .for that wrong he must have a remedy, although it-is not pointed out in the Constitution, or by any' statutory enactment thereunder. Where the Constitution forbids a damage to the private property of an individual, and points out no remedy, and no statute gives a remedy, for the invasion of his right of property thus secured, the common law, which gives a remedy for every wrong, will furnish the appropriate action for the redress of his grievance. We think therefore the declaration showed a good cause of action, and the demurrer thereto was properly overruled. As to the force of the act of the Legislatui-e set up in the declaration, we do not deem it material to enquire in this case. All reference thereto in the declaration may be regarded as sur-plusage. It is certain that the defendant, the city of Parkersburg, did not claim to be acting under it when it made the change in the grade of Pike street. As to the question presented, whether said act was in force when said change was made, or the other question, that might be presented, whether, if in force, it is constitutional, we express no opinion, as the questions do not properly arise.

If the improvement of the plaintiff had been made •before the street was made, or a grade fixed at all, what his rights would be in that case, we do not decide, as that question does not arise in this case. It is clear from the evidence, that the council had fixed the grade of Pike street, and the city engineer gave the grade thus established to the plaintiff, and that in accordance therewith the plaintiff made the improvement, and, after his improvement had been made, the council of the city against the protest of the plaintiff changed the grade by making a fill in the street of a number of feet in front of his property, and inflicted serious injury upon him.

Syllabus 4. Upon the question as to the establishment of the grade of the street, the records, of the city-council was proper for the jury ; and the court did not err in admitting them. The question of damages was for the jury. The jury found that the plaintiff had been damaged $200 by the raising the street, and from the facts certified, we think that the verdict was warranted by the evidence, and the court did not err in refusing to set it aside.

The judgment of the circuit court of Wood county is affirmed.

Judges Green and Moore concúrred. Haymond, Judge, dissented.

Judgment apfirmed.