Davis v. Silverton

Mr. Chief Justice WolvertoN delivered the opinion. Counsel for appellants insist that the demurrer was well taken, on the ground that the complaint does not state facts sufficient to constitute a cause of suit; but, waiving this, we will determine the controversy upon its merits. There is some discrepancy in the testimony as to whether plaintiff’s retaining wall, which was constructed of stone, about 18 inches thick and 4 feet high, stood out in the — 175 — street or not. The plaintiff contends that it was on the line to which she and her predecessors had maintained exclusive possession, as her counsel say in their brief, for more than 25 years. The weight of the testimony, we think, ho.wever, shows that the wall was probably on the line at one end, but extended into the street some 9 inches at the other. However this may be, we may assume that plaintiff’s wall was upon her line, and that there was an actual encroachment by the city upon her property in making the improvement. These conditions would show a trespass by the city, but not of themselves such that plaintiff is entitled to equitable relief. Both the complaint and the evidence offered in support thereof- indicate unmistakably that the proceedings were begun and prosecuted with the sole purpose of grading and improving the street. Considered as a proceeding for an improvement, counsel make no objections to it, either constitutional or otherwise, challenging its regularity, and it is only as an attempt to widen the street and appropriate property therefor that they question its appropriateness and efficacy. So that, standing disconnected from the alleged attempt to widen the street and consequent encroachment upon plaintiff’s property, the proceeding must be taken to have been sufficient to impress plaintiff’s property with the assessment, and to authorize a sale of it for delinquency in payment. We look in vain, however, for any evidence of an attempt on the part of the city to use the proceedings which it inaugurated to subserve the purpose of widening the street and condemning private property therefor. Upon the other hand, the testimony shows that the city did the work in the prosecution of the improvement in good faith, believing that it was grading to the street line only, without any wilful design or purpose of encroaching upon private property, having, as it supposed, ascertained the true boundary dividing the street from plaintiff’s property. — 176 — As bearing upon this subject, Albert Whitlock testified that he had been a surveyor in the city for eight years and that he had become familiar with the monuments ; that he is familiar, also, with the west boundary line of plaintiff’s lots bordering on First Street; that at the southeast corner of the lot the wall extended into the street 12 or-13 inches ; that he had not measured it exactly; that at the other corner the wall above the ground was very close, within two or three inches of the line, but that the base extended out seven or eight inches; that he did the engineering work for the city in making the improvement, surveying and setting the grade stakes ; that he determined the boundary lines of First Street by working from the monuments, and after they were determined he set the grade stakes áud made the estimates of embankment and excavation necessary to bring the street to proper grade; that when the contract was let he superintended the work to see that the survey was followed; and that the line of improvement on the west boundary of plaintiff’s property is as near the true street line as he could practically get it. This testimony indicates very clearly that the city was not making a pretense of one thing to accomplish another, but was pursuing in good faith a course it designed for making an improvement, and not for widening the street. Now, in doing the work, the grade being slightly lower than the foot of the wall, the city extended the excavation at one end somewhat under the wall, causing a portion of it, with other influences, perhaps, to settle and fall in, and the remainder was taken down and the stone put back on plaintiff’s lots. There is some dispute as to whether or not she herself directed the remaining portion to be taken down and the stone disposed of as indicated. This is immaterial, however. The essential purpose of the suit is to enjoin the collection of the assessment made in pursuance of the proceedings for an improvement. — 177 — 1. Now, it is alleged, along with the rest, that the city undertook to widen the street, and in so doing wrongfully and unlawfully attempted to condemn a portion of plaintiff’s property, and, further, that the city is clothed with neither power nor authority to appropriate private property the manner attempted. These allegations, when taken and read in connection with the entire trend of the complaint, become mere conclusions that do not help the cause. Nor does the evidence support them or establish their truth. If in reality there was an encroachment upon plaintiff's lots, it was not by design to widen the street beyond the true boundary, and it could not, by any logical course of reasoning or principle involved, invalidate the the proceedings for the improvement of which the plaintiff complains. It is said in Taylor v. St. Louis, 14 Mo. 20 (55 Am. Dec. 89, 90), Mr. Justice NaptoN announcing the opinion : “To grade a street or alley already dedicated to public use is not an exercise of the eminent domain so as to require compensation. It is not appropriating private property to public use, but simply an exercise of power over what is already public property. The damage resulting, by causing the plaintiffs to rebuild or prop up their falling walls, is consequential, and as it is a consequence of the exercise of a power granted by the State to municipal corporations for public purposes, and the power has not been abused, but skillfully and discreetly exercised, the city authorities are not responsible.” So, in Transportation Company v. Chicago, 99 U. S. 635, 641 (25 L. Ed. 336), Mr. Justice StroNg, speaking for the court, said: “It is undeniable that, in making the improvement of which the plaintiffs complain, the city was the agent of the State, and performing a public duty imposed upon it by the legislature, and that persons appointed or authorized by law to make or improve a highway are not answerable for con — 178 — sequential damages, if they act within their jurisdiction and with care and skill, is a doctrine almost universally accepted alike in England and in this country. * * The decisions in Ohio, so far as we know, are the solitary exceptions. The doctrine, however it may at times appear to be at variance with natural justice, rests upon the soundest legal reason.” See, further, Mayor v. Omberg, 28 Ga. 46 (73 Am. Dec. 748), and note to Perry v. Worcester, 66 Am. Dec. 431, 437, 438. 2. For a negligent or wilful encroachment or trespass by the city upon the property of a citizen, the latter has a remedy at law for damages : Trotter v. Town of Stayton, 45 Or. 301 (77 Pac. 395); City of McGregor v. Boyle, 34 Iowa, 269. 3. Defendant could acquire no title by an encroachment upon plaintiff under the proceedings inaugurated: Vancouver v. Wintler, 8 Wash. 378 (36 Pac. 278); Green v. City of Tacoma (C. C.), 51 Fed. 622. 4. So that, if the city did not improve beyond the line of the street, and exercised care and skill in doing the work, and plaintiff was injured, it was consequential, and damnum absque injuria. But, if there has been a trespass, the plaintiff has lost none of her property and she has her action for damages. 5. Plaintiff, however, asks for damages for the encroachment upon her premises as a part of her reliéf here. Being recoverable at law, it could have no place in an equitable proceeding, unless germane to the suit or growing out of the proceedings complained of. It is a familiar rule that, if equity acquires jurisdiction for one purpose, it will retain the cause for all purposes, and administer complete relief. The rule, however, does not operate to give the court jurisdiction to administer relief at law where the equity fails: Love v. Morrill, 19 Or. 545 (24 Pac. 916); Dodd v. Home Mut. Ins. Co. 22 Or. 3 (28 Pac. 881, 29 Pac. 3); — 179 — Whalen v. McMahan, 47 Or. 37. Such is the precise condition here. Plaintiff has failed in her main purpose — that of enjoining the collection of the assessment. The proceedings for the improvement being regular, and plaintiff having so failed, her equitable remedy is extinct. She might have had her relief to enjoin an encroachment and trespass while in the act, if the city was guilty of the like; but, the act having been accomplished, her remedy is to repossess herself of the property and sue for damages. For this she must be remitted to her action at law. We will not attempt, therefore, to determine whether the defendant in any way encroached upon plaintiff’s lots, or whether or not she has been damaged by the city in the process of making the improvement. We could not administer the proper relief if we did. The decree of the circuit court will be reversed, and the complaint dismissed. , Reversed.