Adams v. City of Vicksburg

Holden, J., delivered the opinion of the court. The appellant, Mrs. Mary Adams, sued the city of Vicksburg for damages to her property abutting on Speed street, on account of changing the grade of the street and sidewalk in front of it. The city denied liability on the ground that the appellant, with other abutting property owners, petitioned the city to grade the street to its proper lines and grades, and, having thus waived her right, was thereby legally es-topped from- claiming damages; that the city would not have incurred such expense of grading without the said petition of appellant and the other abutting owners. The appellant, by replication, admits the petition, and does not deny that the city was induced by the petition to do the work, and does not claim that the grading of the street was done in a negligent manner, nor that it was done in an improper, unskillful, or incorrect manner, thereby causing the damages sued for. In fact, the appellant-makes no contention that the city did the work different [380] from that requested in the petition, except she seems to rely upon the point that the petition does not request a change of the street and sidewalk, and that she did not waive her constitutional right to damages by reason of the request in the petition “to grade the street to its proper lines and grades.” The demurrer by the city to the appellant’s replication ivas sustained, from which judgment this appeal is prosecuted. The petition signed by the appellant and the other property owners on the street in question, is here set out: “Vicksburg, Miss., May 26, 1914. “To the Honorable Board of Mayor and Aldermen of the City of Vicksburg, Mississippi— Gentlemen: “We, the undersigned owners of lots or parts of lots, or the greater number of lots confronting and abutting on the north and south sides of Speed street, between Marshall street on the west and Drummond street on the east, would respectfully petition your honorable body to have said street graded to the proper lines.and grades, and that the usual legal notice be issued for the laying of uniform sidewalks on said street between points named, according to article 25 of section 28 of the city charter as amended, and to be paid for as provided by said article and the amendment thereto. Respectfully, “Dave Dawson. “Mary X • Riley. “John Dollin. “L. C. Jefferson. Jos. Tigkell, Sr. Mrs. T. R. Adams,. W. H. Jefferson. J. H. Dora. “Marshall X Edwards.” The contention made by counsel for appellant that the petition did not authorize the city to change the grade [381] of tlie street is untenable. We think the language is a plain request to the city “to have said street graded to the proper lines and grades,” which undoubtedly means that the grade should be changed if necessary and proper to do so. The appellant cannot reasonably claim that the city did not do precisely what she petitioned it to do. The grading vas done without objection, and the appellant, after legal notice, laid a sidewalk in front of the property according to the grade, and paid for it. The only question before us on this appeal is whether this case comes within the rule announced in City of Meridian v. Hudson, 111 Miss. 339, 71 So. 574, which case was followed in Oliver v. City of Macon, 111 Miss. 349, 71 So. 575. Counsel for appellant argues that the case at bar differs from the Meridian Gase, su/pra, in that the facts are dissimilar. But, after a careful consideration and due comparison of the two cases, we are convinced the instant case falls within the rule announced in the Meridian Case, and the appellant, therefore, is estopped from claiming damages against the appellee. The constitutional right of the abutting property owner to recover in cases of this kind was well discussed by this court in Robinson v. City of Vicksburg, 99 Miss. 439, 54 So. 858, and that decision, with its citations., was reviewed and discussed by this court in Meridian v. Hudson, supra; and it is now the established law of the state, as announced in the latter case, that the abutting property owner on a street may waive her right to compensation for damages done on account of grading the street, where the owner requests the work to be done, and it is done in the proper manner and without negligence, and we are constrained to follow the law as thus announced. The judgment of the lower court is affirmed. Affirmed.