Methodist Episcopal Church South v. City of Wyandotte

The opinion of the court was delivered by Horton, C. J.: The question arises, whether under the allegations of the petition the plaintiff is entitled to recover damages. The act relating to cities of the second class provides that “the cities coming under the provisions of this act in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes, in addition to the other powers granted by law: . . . Second, To open and improve streets, avenues, and alleys, make sidewalks and build bridges, culverts and sewers within the city. (Laws of 1881, ch. 48, § 2; see also § 32, ch. 100, Laws of 1872.) This power “to open and improve streets” includes the power to alter the grade or change the level of the land on which the streets are laid out. If the city has once fixed a grade, which it afterward finds improper or insufficient, it has not exhausted its power, and thérefore has the authority to change the grade to improve the streets. “As the duty is a continuing one, so is the power necessary to perform it.” (Smith v. The Corporation of Washington, 20 How. 135; Goszler v. Georgetown, 6 Wheat. 593.) There is the same reason and the same justification for changing a grade once established, when the public convenience is found to require it, that there is for fixing it in the first place. Therefore the power to open and improve [725] streets, which includes the power to grade them, may be exercised from time to time as the wants of the city may require. Of the necessity or expediency of this exercise, the mayor and council of the city, and not the courts, are judges. The injury, if any, which resulted to the plaintiff by the change made by the city in the grade of the public street, resulted from the lawful exercise of a power granted to the city by legislative authority. For the incidental injury arising from the exercise of this authority, the city is not liable. Dillon says: “In connection with the principle that there is no implied liability for doing an act which is either direct or authorized by valid statute, may be noticed the power of municipal corporations to grade and to change the established grade or level of their streets, though the exercise of the power may be injurious to the adjoining property owners.” (2 Mun. Corp., 3d ed., § 989.) Again, he says: “The courts, by numerous decisions in most of the states, have settled the doctrine that municipal corporations acting under authority conferred by the legislature to make and repair, or grade, level and improve streets, if they keep within the limits of the city and do not trespass upon or invade private property, and exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to adjoining owners, whose lands are not actually taken, trespassed upon or invaded, for consequential damages to their premises, unless there is a provision in the charter of the corporation, or some statute creating a liability. There is no such liability even though in grading and leveling the street, a portion of an adjoining lot, in consequence of the removal of its natural support, falls into the highway.” (Sec. 990,id.) (See also City of Pontiac v. Carter, 32 Mich. 164, and cases there cited; City of Atchison v. Challiss, 9 Kas. 610.) It is true that the petition alleges that the city proceeded “ unlawfully and without authority,” and charges that the acts of the city were unlawful and unauthorized. As the city had the power to do the acts charged, and as such acts in themselves were lawful, the words “ unlawful and without authority,” as [726] used, do not affect the case. There is no allegation that the city acted negligently, unskillfully, maliciously, or wantonly. The Ohio cases to which we are referred stand almost alone, as the other cases are either founded upon some statute creating a liability, or upon the provisions of state constitutions differing widely from that of Kansas. The numerous cases supporting the conclusion we have reached are best sustained in principle. Counsel insists, however, that the statute expressly provides for the payment of damages occasioned by the improvement of the streets of a city of the second class, and refers to §§ 54 and 65, ch. 100, Laws of 1872. Section 54 reads: “ The council shall have power to open, widen, extend or otherwise improve any street, avenue, alley, or lane, etc.: . . . Provided, That all damages sustained by the citizens of the city, or the owners of property therein, shall be ascertained as prescribed in § 65.” . Without this section the city had the power to make the improvement complained of, under § 2, ch. 40, Laws of 1881, and like power was granted under § 32, ch. 100, Laws of 1872. (See also § 19, ch. 65, Laws of 1873.) Said §54 grants to the council the power to open, widen or extend any street,'and the words “or otherwise improve” must, under the rules of construction, be limited by the preceding language of the section, and therefore must be held to refer only to such improvements as are like those mentioned, namely, “ to open, widen and extend,” or are necessarily incident thereto and which partake of the same character. Sec. 65, to which § 54 refers, merely provides for compensation to persons whose property shall be taken for public use or injured by the taking for public use; and therefore under its, terms, persons incidentally injured by a change in the established grade of a public street already opened, are not entitled to compensation. The injury incidentally affecting adjacent property by the change of the grade of a public street, is not, under said § 65, the taking of private property for public use. We think it was not intended by the sec [727] tions referred to to compensate persons incidentally injured by a change in the established grade of a public street. The judgment of the district court must be affirmed. Valentine, J., concurring.