City of Henderson v. Winstead

[330] Opinion op the Court by JUDGE HOBSON Reversing. Appellee, A. L. Winstead, is the owner of two vacant lots on First street in the city of Henderson, near the city limits. The city changed the grade of the streét in front of his lots, cutting it down so that at the lowest point it was 4% feet below the level of the ground, and at the highest point was on about the same level. He then filed this suit to recover of the city damages for the. injury to his property from the change of the grade of the street, alleging that thereby it had been damaged in the sum of $500. Issue was made as to the damages, and a verdict was rendered fixing the damages at $200. The chief questions on the appeal relate to the admission of evidence and the instructions of the court to the jury. As these raise, in effect, the same question of law, they will be considered together. The proof for appellee showed these facts: Before the street was cut down, it was on the natural surface of the ground, and had become hardened, leaving a good roadway to appellee’s distillery, situated beyond on other property. Over it heavy loaded wagons could readily pass at all seasons of the year in front of the two lots in going to and from the distillery. On the side of the roadway there were a few trees and stumps, but there was no trouble in hauling over the roadway before it was cut down. After it was cut down, the city took no steps to rock or gravel or otherwise improve the street, and in wet weather and after freezes it became miry, and almost impassable. Coal wagons going with coal to the distillery mired in front of the lots, and had to be unloaded before they could be moved. The city objected to all this evidence. -the objection was overruled, and the evidence admitted, but the court told the jury they were not to consider any evidence about the dis [331] tillery. There was also evidence for appellee tending to show that his lots would have to be re-graded, and to this extent were directly injured by the change of grade of the street. The evidence for the city tended to show that the roadway before the excavation was much like other dirt roads in winter or bad weather, and that from the slope of the lots they were not injured, but rather benefited by the excavation. On this evidence the court, by instructions 1 and 2, in effect told the jury that, if the property had been injured by reason of the street being cut dowrn or left in a bad condition for travel, or the ingress or egress to and from the street to the property had been impaired, they should find for appellee a fair compensation for the injury; and that in estimating the damages they should not diminish the amount on account of any enhancement of the property in value by the change of the grade of the street, unless it received some special benefit not in common with -other property along the line of the work. By instruction “A” they were also told substantially to find for appellee the amount the property was depreciated in value, if any, by the excavation of the street. On the whole evidence it is clear that the damage to the two vacant lots from the change of the grade is slight, and that the verdict of the jury is largely due to the fact that the city failed to macadamize or gravel the street after it was cut down. If, by cutting down the grade of the stréet, the city injured appellee’s property, it is liable to him for the damage thus done. But, when the change of grade had been made, if the city failed to keep the street in repair, that was a distinct matter from the cutting down of the grade, and the liability of the city for this is just the same as for failing to keep in repair any other street in the city. According to the evidence, the [332] street, after it was cut down, was good in tbe summer or in dry weather, but became bad from the hauling done over it when wet,' or soft after a freeze, This was 'due to the city’s failure to keep its streets in repair, or to have it graveled or macadamized. By section 3449, Kentucky Statutes, the city is empowered by ordinance to require the streets to be thus improved at the cost of the owners of the ground fronting the improvement. In determining whether or not such a burden should be placed on the property owners, the city council necessarily exercises a large discretion. For the failure of its authorities to exercise duties of a discretionary nature the city is not responsible. Elliott, Roads & S., section 632. For failure- to repair its streets the city is civilly liable to any one using it who suffers special damage from its want of repair, but not to others. It was error, therefore, to admit the evidence as to the street being out of repair, or not graded or macadamized, and the recovery should have been limited to the damage to the two vacant lots from the cutting down of the street. The measure of damages is the diminution in value of the property by reason of the lowering of the grade of the street. City of Louisville v. Hegan (Ky.), 49 S. W., 532. Instruction “A” given by the court expressed the rule properly, and instructions 1 and 2 should not have been given. Judgment reversed, and cause remanded for further proceedings consistent with this opinion.