Robinson v. Mayor of Vicksburg

Anderson, J., delivered the opinion of the court. The appellant, Robinson, sued the appellee, city of Vicksburg,' for damages alleged to have been done his lot and building on Mulberry street, in said city, by the appellee, in raising the-grade of said street on the side next to said lot, and recovered judgment for eight hundred and sixty-six dollars and sixty-five cents, from which he prosecutes this appeal, and the appellee a cross-appeal The appellant bought his lot- on Mulberry and Clay streets in 1901, on which he soon thereafter constructed a machine, shop, and which he continued to use and operate up to the time of the bringing of this suit. His building was constructed with reference to the grade of Mulberry street as it then existed and had existed for many years, and which continued until the injury complained of, which occurred in 1908. The appellee’s charter provides that on the petition of a majority of the — 449 — owners of the greater number of lots or parts of lots, or of the owners of the greater number of lineal feet, fronting on any street or alley, the mayor and board of aider-men may pave such street or alley; the city paying the cost of grading and paving the street intersections, together with one-third of the cost of the work, the remaining cost to be paid by the abutting property owners. In 1908 a majority of the owners of lots and parts of lots, who were also owners of the greater number of lineal feet, fronting on Mulberry street, between Grove and Depot streets, petitioned the mayor and board of aldermen to pave that part of Mulberry street. Among the abutting owners who signed said petition was the appellant. Such petition was presented to the mayor and board of aldermen, who thereupon passed an ordinance providing for the paving of Mulberry street as prayed for. The petition of the abutting owners is silent as to the grade on which the paving was to be done. The ordinance, however, adopted in pursuance of the petition, provided that the paving should be done “on the grade now fixed and established.” No grade had ever been in fact established by formal act of the municipal authorities. For many years it had stood as it was when changed in 1908. At the time this ordinance was adopted no grade was fixed, nor was there afterwards, by any record entry or order. Mulberry street, between Grove and Depot streets, slopes from east to west, and, before graded and paved in pursuance of this ordinance, was five and one-fifth feet lower on the west than on the east side at the point where it abutted appellant’s lot. When his building was constructed, its floor was slightly elevated above the west curb of Mulberry street. In grading and paving the' street under this ordinance, the west curb adjoining appellant’s property was raised three and one-fifth feet, which appellant claims damaged his lot and building. — 450 — The appellee contends that the appellant is estopped to claim damages resulting in the change of the grade of the street, because he signed the petition to the mayor and board of aldermen asking that the street be paved. In 11 Am. & Eng. Ency. of Law (2d Ed.), p. 387, “estoppel” is thus defined: “An estoppel may be defined in a general sense to be a preclusion of a person to assert a fact which has been admitted or determined under circumstances of solemnity, such as by matter of record or by deed, or which he has by an act in pais induced another to believe and act upon to his prejudice.” Section 17 of the Constitution of 1890 provides that: “Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof,” etc. The petition signed by the appellant contained no express waiver. May a waiver be implied from a mere signing of the petition by him? Or may a waiver be implied by his signing the petition with the knowledge that in paving the street the city might find it necessary to change its grade? We think not. In our judgment such conduct ought not to operate as ah estoppel. A constitutional right may not be so lightly waived. There is nothing whatever in the petition, nor in the conduct of the appellant as disclosed by the record, which evidenced a purpose on his part to waive his constitutional right to claim damages to his property, caused by raising the grade of the street. Nor is there any evidence tending to show that the city, in passing the ordinance providing for paving the street, was led by the appellant to believe that he would not claim his right to damages for an injury thereby done him. We approve the language of the supreme court of Alabama, in passing on this identical question, in the case of Decatur v. Scharfenberg, 147 Ala. 367, 41 South. 1025, 119 Am. St. Rep. 81, as follows: “We are not of opinion that the petition merely to pave the avenue would be a — 451 — waiver of damages growing ont of the change in the grade of the highway, as set forth in the bill. Such waiver of a constitutional right ought not to be lightly inferred, and cannot be clearly derived from the request to pave the avenue and the agreement to bear a part of the expenses of the paving. Newville Road case, 8 Watts (Pa.) 172; Barker v. City of Taunton, 119 Mass. 392; Birdseye v. City of Clyde, 61 Ohio St. 27, 55 N. E. 169; Jones v. Borough of Bangor, 144 Pa. 638, 23 Atl. 252. As said by the supreme court of Massachusetts in Barker v. City of Taunton, 119 Mass. 392: ‘It is no bar to the claim for damages made by the petitioner that he was one of the original petitioners for- the improvement. That alone is not evidence of an assent that his property shall be taken for public use without compensation.’ While the court uses the words ‘taken for public use,’ the facts of the case show that it was similar to the one before us, and that damages were claimed for injury to plaintiff’s premises by lowering the grade in the construction of a sidewalk. There, also, the plaintiff had merely petitioned for the construction of the sidewalk. To sustain its position appellee relies on Texarkana v. Talbott, 7 Tex. Civ. App. 202, 26 S. W. 451; Collins v. Grand Rapids, 95 Mich. 286, 54 N. W. 889; Vaile v. City of Independence, 116 Mo. 333, 22 S. W. 695; Ball v. City of Tacoma, 9 Wash. 592, 38 Pac. 133. It is held in those cases that an abutting owner who joins in a petition to the municipality to grade or change the grade of the street is estopped to claim damages to his property caused by such change of grade. That principle has no application to the facts of the case at bar. Here the petition did not ask for a change in the grade of the street, but only that the street be paved. Whether the principle declared in those cases is sound this court is not now called upon to decide. It follows that the court below erred in admitting in evidence the paving petition signed by the appellant. — 452 — There was no issue of fact for the jury to try as to appellee’s liability for whatever damages appellant suffered by the grade of the street being raised. There is no conflict in the evidence on the question of liability. The facts are undisputed. Under the law the appellee is liable to the appellant for the damages done his property by raising the grade of the street. The court, therefore, erred in refusing to instruct the jury to find for the appellant on the question of liability, as requested in his behalf. It is contended for appellee that, in view of the fact that the jury found in favor of the appellant on the question of liability, the latter is precluded from complaining of the error of the court in refusing to instruct the jury peremptorily on that question, and in admitting* in evidence the paving petition signed by the appellant. This position would be well founded, if it were clear that such error did not prejudice the jury against the right of the appellant to damages. It cannot be said, however, that this is true. By submitting to the jury the issue of liability, along with the paving petition, which could have no other effect than as tending* to influence the jury to believe the appellee had done appellant no injury, makes it clear that the jury was unduly hampered in determining the amount of damages appellant was entitled to. The sole question which ought to have been submitted to the jury was the amount of appellant’s damages. The erroneous action of the court was calculated to cause the jury, in determining both the question of liability and the quantity of damages, to render a compromise verdict as to the latter. For example: Some of the members of the jury may have thought there was no liability, while others were of opinion there was liability, and appellant ought to have the amount of damages his testimony tended to prove, three thousand dollars, and to adjust this difference a compromise verdict as to the damages may have been the result. To say the least of — 453 — it, the error of the court was calculated to produce this result. Prom these views, it follows that the case is reversed on direct and affirmed on cross-appeal and remanded. Reversed and remanded on direct appeal. Affirmed on cross-appeal.