Hendershott v. City of Ottumwa

Rothrock, J. l municipal ira(ieraof>n: tora1liace3ntT i°ís. It is claimed upon the part of plaintiff that depositing the earth so as to roll down the sides of the em-hanlcment upon his lots was a direct injury, for which the city is liable. Counsel for defendant claims that the city had the right to widen the top of the embankment to the full width of the street, and was not bound to erect a wall or barrier to prevent the earth deposited on the embankment from rolling down upon plaintiff’s lots. The court instructed the jury in accord with plaintiff’s theory. This is the only question in the case. It is well settled that a city has the power to change .the grade of streets, either by reducing or elevating their natural surface; and the purchasers of lots adjacent to a street are supposed to calculate the chances of such reductions and elevations, as the increasing population of the city may require. Callender v. Marsh, 1 Pick., 417; Houston v. Hancock, 12 Mass., 220; Ellis v. Iowa City, 29 Iowa, 229; Cotes & Patchin v. Davenport, 9 Id., 227. It is equally well settled that if, in making changes in the natural surface of streets, the city is negligent in construction, so that the adjacent lots are injured by reason of such negligence, the city is liable for such injury. Cotes & Patchin v. Davenport, supra; Ellis v. Iowa City, supra; Wallace v. Muscatine, 4 G. Greene, 373; City of Aurora v. Reed, 57 Ill., 30. Other authorities might be cited in support of the foregoing propositions, were it necessary. [660] It must be admitted, in this case, that the city had the right to grade the street to the full width for the purposes of public travel; but it had no right to deposit earth upon plaintiff’s lots. It is urged that the earth was not deposited upon the lots, but upon the embankment in the street, and it rolled down upon the lots; and that the injury was an incident necessarily resulting from grading the street in front of plaintiff’s lots, which was a proper exercise of a lawful power. No one would claim that the city, in making the embankment, had the right to enter upon plaintiff’s lots and deposit the earth directly thereon. This, beyond question, would be a trespass. It seems to us the city is equally liable for depositing the earth in the street in such a manner that, without ceasing its motion, it passed at once upon the lots. The only difference is that in one case the earth falls from the cart or wagon perpendicularly, and in the other it descends at an angle. By the law of gravitation the injury is as direct and certain in one case as the other. In both cases it is a direct encroachment upon the soil of the adjacent lots, by depositing that upon the earth which was not there before. We have found no case, after diligent search, where it has been held this may be done. On the contrary, many cases recognize a different doctrine. City of Aurora v. Reed, supra; Pumpelly v. Green Bay Co., 13 Wallace, 166; Radcliff's Ex'rs v. Mayor, etc., 4 Comst., N. Y., 195; Hay v. Cohoes Co., 2 N. Y., 159; Pettigrew v. Evansville, 25 Wis., 223. The authorities cited by counsel for defendant are all cases where the streets were excavated to the line of the adjacent lots, or cases where it does not appear that the embankment actually encroached upon the lots. Callendar v. Marsh, supra,s was an action of tresjiass for digging down the street by plaintiff’s dwelling house, in the city of Boston, and taking away the earth, so as to lay bare the foundation walls of the house, and endanger its falling, in consequence of which plaintiff' was obliged to build a wall, at great expense. In Taylor v. St. Louis, 14 Mo., 20, there was an excavation of an alley, by which the earth caved in and the buildings on the adjacent lots were in danger of falling. It [661] was held that the damage resulting by causing plaintiff to rebuild, or prop his falling walls, was, consequential. In Mayor and Council of Rome v. Omberg, 28 Georgia, 46, the city, in grading a street, dug so near the lot of plaintiff that the earth crumbled away and a fence fell down. These, and other cases, hold that there can be no recovery against the city. It will be observed that, in these and the other cases cited in argument, the acts of the city were done-within the limits of the street, and in making the excavations or embankments there was no encroachment upon the soil of the adjacent owners. In Thurston v. Hancock, supra, ff was held that a person is liable for digging so near the line as to cause the natural earth to crumble, but is not liable for consequential injuries which may result to a building placed near the line. ¥e need not determine whether a. city is liable for digging to the line of a street by which the soil upon the adjoining land is caused to fall, to the damage of the owner. There is a clear distinction between such a case and the case at bar. In making an excavation to the line of the street, there is iio encroachment upon the adjoining land. The injury is not direct and immediate. It depends upon the lapse of time, the action of the elements, the depth of the excavation, and the character of the soil. Affirmed.