Fayetteville v. Stone

Wood, J., (after stating the facts). When the natural surface has been used as the grade line for the streets of a city, and abutting property owners have improved their property with reference to such streets and grade lines, if the city after-wards changes the grade from the natural surface so as to damage abutting property owners, the city will be liable for such damages. The use of the natural surface as a grade for its streets by a municipality is the establishment of a grade conforming to that surface. In Harman v. Bluefield, 73 S. E. 296, it is said: “It is not necessary that the city should have first by ordinance established a grade line and then afterwards have changed it to constitute liability. The use of North Street by the public from 1905 to 1907, when it was improved and the grade line changed, was tantamount to the adoption of the street with the natural surface as the grade line, and any subsequent change from that grade line, which injured plaintiff’s property, rendered the city liable.” Citing cases. The surface in such cases is the initial grade line. Any change thereafter made from such grade is a change from the established grade. In this case the uncontradicted evidence shows that the abutting property in controversy had been built to conform to -the original surface grade of the street of the city of Fayetteville, which had been used by the public as such for a number of years. In Hempstead v. Salt Lake City, 32 Utah, 261, 90 Pac. 397, a municipal corporation was held liable for change of grade of a street which had been used for a long time at the original or surface grade. The court used the following language: “The effect on respondent’s property was precisely the same as though there had been a change from one established grade to another. It is a matter of universal knowledge that, if property is improved at all when a town or city is platted, it must be in accordance with the natural or surface grades. That is the grade generally adopted and acted upon, and this, for all practicable purposes, becomes the established grade of such streets upon which the abutting owners may rely in making improvements.” In Hutchinson v. Parkersburg, 25 W. Va. 226, a municipality was held liable for change of grade of a road which had existed for a number of years previous to its incorporation within the limits of the municipality. See also Blair v. Charleston, 43 W. Va. 62, 35 L. R. A. 852, 64 Am. St. Rep. 837; Sallden v. Little Falls, 102 Minn. 358; New Brighton v. Peirsoll, 107 Pa. 280, and other cases cited in appellee’s brief. We are of the opinion, therefore, that the lowering of the grade of the street by the cutting down of the sidewalk in front of appellee’s property abutting thereon was a change in the grade of the street. In Dickerson v. Okolona, 98 Ark. 206, this court, construing the provisions of our Constitution and statutes on the subject, held that damages must be paid for injury to abutting property by the change of a street grade, which damages are direct and peculiar to such property, and not such as are shared by the public generally. In a note in that case, in 36 L. R. A. (N. S.) pp. 1194-1196, it is said: “The rule sustained by the great weight of authority is that, under a constitutional provision against the taking of private property without compensation, a municipal corporation is liable for damages resulting to an abutting owner for a change in the grade of a street.” Citing numerous cases. There is a decided conflict in the evidence as to whether or not appellees were damaged by reason of the changing of the grade of the sidewalk. It could serve no useful purpose to review the evidence. The writer is of the opinion that the preponderance of the evidence shows that appellees were damaged in the sum of four or five hundred dollars, but a majority of the court is of the opinion that the findings of the chancellor as to damages and the amount théreof are not clearly against the weight of the evidence, and his judgment is therefore correct, and must be affirmed.