Mithoff v. Town of Carrollton

Merrick, C. J. We see no error in the rulings of the court, as shown by the bills of exception under the pleadings in this case. This case is distinguished from the case of Dubose against the Levee Commissioners, in this : that the town of Carrollton deemed it necessary to the public safety and convenience, that the houses of the plaintiffs on the line of the new levee should be torn down, and passed an ordinance for that purpose, which was carried into effect. In the Dubose case, the houses were left standing and the levee was built in the rear of them. The plaintiffs in the lower court obtained judgment for the value of their houses and the land, as taken for public purposes. The defendants appealed. It is contended by the defendant, that the case of Dubose is decisive of this, and that the plaintiffs are not entitled to recover either for the land or the houses which were demolished. Whilst we acknowledge the correctness of the decision in the Dubose case, we think a distinction must be made between the resumption of servitude, which the soil upon the banks of the Mississippi river alone owes to the public, and the destruction of buildings (placed upon the soil before the servitude becomes due,) in order to arrive at the use of such servitude. At the time the owners of the lots, for which compensation is claimed, built upon them, they owed no immediate servitude to the public of any kind. When they erected the buildings upon them, they had the undoubted right to build in such form and manner as they pleased. They were at liberty to put up buildings costly or plain, according to their fancy, whatever that fancy might be. When so erected, the buildings were theirs in the highest sense of the term, and the property thereof being vested in them, as such owners they were protected from an expropriation in order to arrive at the servitude which the soil alone came to owe, by the constitution, which requires compensation to be made in such eases ; Art. 105. By the wearing away of the bank of the river, the safety of the public required the houses of Mithoff and Bobbins to be demolished and a levee to be constructed over the ground occupied by their buildings. Their land, therefore, by virtue of its location and vicinity to the river, became bound, under the laws which prescribed the obligation of proprietors of lands bordering upon the river, to suffer the servitue of the levee and nothing more. The buildings had not been put up in violation of any law, and they could not be removed from the soil without compensating the owners for them. The town authorities might, as was done in the Dubose case, have run the levee behind [186] these buildings, or in front, so as not to obstruct them absolutely, and the proprietors could not complain. But, when the public, by its proper authorities, chose to pull down the houses, it took from the owners something more than the mere servitude, which was due by the soil: it took a part of the property itself, for which the defendant owes the plaintiff compensation. Art. 105 Constitution 1852. In Mithoff’s case, the Judge of the lower court has expressed his opinion upon the value of the house, which we adopt. He estimates the value of the house at $600. The materials sold for $60. There should be judgment in favor of Mithoff for $540. In the case of MoGaughan, who is the assignee of Bobbin’s claim against the town of Carrollton, thS Judge of the iower court has not favored us with the calculation upon which his decree is based. Nor has the plaintiff introduced that certain evidence which was in his power. One of his witnesses says the cost of the buildings on Bobbin’s lots was $11,950. Another says they were worth seven or eight thousand dollars ; but he was never inside the buildings. One of defendant’s witnesses, the Mayor of Carrollton, says, that he assessed Bobbin’s improvements at $3000 or 3500 ; but, like plaintiff’s witness, he had not been inside of Bobbin’s houses. The prdof is quite clear, that the property of both Mithoff and Bobbins was greatly depreciated by the caving of the bank for some years in front, and the apprehension of a further removal back of the levee. This depreciation of plaintiff’s property was the act of God, and they cannot call upon the defendants to indemnify them for it. All the plaintiffs can require is an indemnity for the value of their houses taken for public purposes at the time thby were so taken. From all the testimony) we think the estimate of the Mayor nearer the truth than the other witnesses, who seem to have testified not so much to the relative situation and value of the houses, as to their value aside from their situation. We think $3250 the relative value of Bobbin’s improvements at the time his houses were removed and the levee built. The statues, it appears from the testimony, werfe in a mutilated condition before they 'were set up by Bobbins, and there is no reason to suppose that they Were much injured by the removal, or that thby added much to the value of th'e property. The witness Fur cell's testimony was only éonjectufal; he hev'ér having seen 'the statues in their perfect state. As they were not iii that condition when placed on the property, the testimony of the witness possesses no value as the basis for the assessment of damages. Taking the value of Bobbins’ improvements at $3^50, and deducting therefrom $32o, the value of the materials sold by Bobbins, and it Leaves $2925, for which the plaintiff, MoGaughan, is entitled to judgment. It is, therefore, ordered, adjudged and decreed', that the judgment appealed from in these cases be avoided and reversed, and now proceeding to render such, judgment as ought to have been rendered by the lower court in both cases, it is ordered, adjudged and decreed by the court, that the plaintiff, William Mithoff, do recover and have judgment against the said defendant, the said town of Carrollton, for the sum of five hundred and forty dollars ; and it is further ordered, adjudged and decreed, that said plaintiff, J. J. MoGaughan, do recover arid have judgment against the same defendant, said town of Oarrolltorij [187] for the sum of two thousand nine hundred and twentjr-five dollars, and it is further ordered, that the said Mithoff and Cawjhan each pay one half of the costs of the appeal, and that the defendant pay the costs of the lower court.