Eickhoff v. Street Improvement District No. 11

Wood, J., (after .stating the facts). (1) Cities and towns have the power to fix and change the grades of their streets. These powers are expressly conferred upon them for the public good. Kirby’s Digest, ^ § 5475-5495. (2) Under the statute .and our decisions where abutting owners have made improvements with reference to the established grade of the streets, thereafter if the grade is changed to the damage of abutting owners, the city is liable for such damage. Kirby’s Digest, § § 5495-6-7; Fayetteville v. Stone, 104 Ark. 136; Dickerson v. Okolona, 98 Ark. 206; Jonesboro v. Pribble, 112 Ark. 554. (3) Improvement districts in cities and towns are quasi-governmentul agencies. They have no powers except those expressly conferred by statute, and those necessarily implied from the powers expressly given. They are under such duties, and lare subject to ;such liabilities only as are imposed by statute. Board of Improvement of Sewer District No. 2 v. Moreland, 94 Ark. 380. (4) “Under the generic term street is included all parts of the way, the roadway, the gutters and the sidewalks.” Elliott on Roads and Streets, p. 17; Little Rock v. Fitzgerald, 59 Ark. 494. Now, the complaint, while .alleging that the improvement 'district was 11 organized and existing under and by virtue of the State of Arkansas,” nowhere alleges that it was created for the purpose of grading Washington Avenue in front of appellant’s buildings. In this particular the complaint is fatally defective and flails to state a cause of action against the district, even if the 'district were liable in damages to .abutting owners by reason of the grading of the street. (5) But as already observed, the district itself could not be liable for damages that accrued in grading a street according to the established grade, because the statute requires that “all -such improvements -shall be made with reference to the grades of the streets and alleys as fixed or may be fixed by ordinances of the city.” Kirby’s Digest, § 5672. The liability, therefore, for 'the taking or damage to private property for the public use, towit: The grading or changing the grade of a street is on the city not on the improvement district. The improvement district itself would not be liable for damages to abutting owners for the grading of streets even if their officers, servants iand agents violated the law by doing the work contrary to the grade as fixed by the city -ordinances. For all such acts would be ultra vires and torts pure and .simple, or else acts of negligence on the part of the officers, servants ¡and agents for which these public quasUcorporations are not liable. Improvement Dist. v. Moreland, supra. See also Wood v. Drainage Dist. No. 2 of Conway County, 110 Ark. 416, and Jones v. Sewer Imp. Dist., 119 Ark. 166. Appellant relies upon McLaughlin v. City of Hope, 107 Ark. 442. That was a suit against the city of Hope for damages to certain lands ¡beyond the city limits caused by the discharge of the sewage of the city into a stream running through the lands. The court (held that the city had the power to turn the sewage into the stream, and that its act in iso doing was tantamount to a taking or damaging of the property for a public use, and that the damages should be assessed as if the ¡act of the city were a proceeding to .acquire the property under the power of eminent domain. See also City of El Dorado et al. v. Scruggs, 113 Ark. 239. These cases are not applicable here. It follows ¡that the judgment is correct and must be affirmed.