Richards v. Salt Lake City

STRAUP, C. J. The plaintiffs brought this action to recover damages alleged to have been caused to their property situate in Salt Lake City on the east side of Thirteenth East street between Eleventh and Twelfth South streets by the defendant grading the street and sidewalk in front of their premises, dumping earth and material upon and taking a strip of their land, destroying their fence, and rendering rights of way inaccessible. The case, tried to a jury, resulted in a judgment in plaintiffs’ favor for $502, from which the defendant appeals. The plaintiffs acquired the property in 1903. It then was without the corporate limits of the city. The street or highway and a dirt sidewalk had been maintained by the county along Thirteenth East street in front of plaintiffs’ premises, and had been traveled and used by the public for many years. The property is especially valuable for residence purposes. Upon it the plaintiffs maintain a dwelling, where they live, and other improvements. The county had not established any official grade of the street. It merely improved it and kept it in repair. There thus was no grade other than the natural grade, and such as existed from long usage, travel, and maintenance of the street. In 1907 the corporate limits of the city were extended so as to take the plaintiffs’ property within the city limits. The sidewalk in front of plaintiffs’ property for a distance of about 150 feet then was from one to two feet higher than the traveled portion of the street, and for a distance of about 227 feet was from one to two and one-half feet, for a part of the width of the sidewalk, lower than the traveled portion of the street, and for about ten feet at the north end along a gulch was about twenty feet lower. [31] Thereafter water mains were laid in the street by the city in conformity with such natural grade. In 1913 the city for the first time established an official grade of the sidewalk and street which in front of plaintiffs’ property for a distance of about 150 feet lowered the sidewalk from one to three and one-half feet, and for 227 feet raised the sidewalk from one to three feet, and along the gulch raised it twenty feet. The improvement was made in accordance therewith, and in making it the city as claimed by the plaintiffs, for a distance of about 287 feet, extended the sidewalk and encroached upon their property to a width of zero at one end and nine feet at the other, thus taking from them a triangular strip 9x287 feet, tore down their fence, excavated so near their house as to require a retaining wall, dumped earth and material on their premises, and so raised and lowered the sidewalk as to interfere with their rights of way to and from their property. It is stipulated that evidence was given by the plaintiffs “to sustain the allegations of the complaint.” We are therefore no longer concerned with the evidence. Furthermore, the whole of the evidence is not before us. 1, 2 The chief contention of the city is this: Since no official grade had been established along the street by either the county or the city until the grade of 1913, the city claimed the right to establish a first or an initial grade, and to make the improvement in accordance therewith, as was done, without being responsible for consequential damages, and therefore that it was entitled to a directed verdict in its favor. Manifestly that cannot be so, for, on the plaintiffs’ stipulated evidence, and upon a finding in harmony with it, the plaintiffs were .entitled to recover for the strip of ground taken by the city, tearing down the fence, and dumping earth and material on their premises. And then we do not think the case within the rule where it may be said, as matter of law, that all the city did was merely to correct surface irregularities and inequalities without injuriously affecting plaintiffs’ property. We think such matter was for the jury. The motion to direct a verdict was therefore, on both theories, properly overruled. [31] The defendant also complains of the court’s refusal to give [32] a number oí its requests, nine of them. Some of them are argumentative. The substance of others was given. Those chiefly .complained of are in line with the city’s position on its motion to direct a verdict: That it had the right to fix an initial and official grade and to make the street conform thereto without being liable for any resulting' damage, unless the work was done negligently or unnecessarily, and that it would be liable for resulting damages to abutting property only when making improvements under a changed or re-established grade, and that it had the right to make "normal and ordinary improvements for street purposes without paying damages to plaintiffs consequent upon making such improvements. ” We do not think such a position so broadly taken, is supported by our prior decisions. In Kimball v. Salt Lake City, 32 Utah 253, 90 Pac. 395, 10 L. R. A. (N. S.) 483, 125 Am. St. Rep. 859; Hempstead v. Salt Lake City, 32 Utah 261, 90 Pac. 397; Felt v. Salt Lake City, 32 Utah 275, 90 Pac. 402, and Webber v. Salt Lake City, 40 Utah 221, 120 Pac. 503, 37 L. R. A. (N. S.) 1115, we held that the city was liable for damages to abutting property resulting from changing an established grade and making improvements in accordance with the re-established grade after the abutting property owner had improved his property in conformity with the first-established grade. In Coalter v. Salt Lake City, 40 Utah 293, 120 Pac. 851, and in Gray v. Salt Lake City, 44 Utah 204, 138 Pac. 1177, Ann. Cas. 1916D, 1135, we, in effect, held that, when a grade of a street was officially and legally established by a municipality, the abutting property owner was charged with notice thereof,- and in making future improvements was required to make them in conformity with such established grade; and, failing to do so, he could not recover for depreciation in value and enjoyment of his improvements placed upon the property after the grade was officially and legally established and before the work in the street in accordance therewith had been done, unless the established grade was either expressly or by implication abandoned, or was no longer recognized by the municipality, or existed for such a length of time without making any improvement in conformity therewith as to indicate an abandonment. [33] Tbe case in hand falls within neither of these and rests on different facts. Here the improvements on the abutting property were made and the property enjoyed before it even was taken within the corporate limits of the city, and no improvements made thereon after the grade was established in 1913. Thus the question is: If, by establishing a grade and by excavating or raising a street and sidewalk in conformity therewith, abutting property is injuriously affected and damaged, may the owner thereof be compensated for such damage? We think this is answered by what is said in Kimball v. Salt Lake City, supra. It is there said: “It is likewise true that in some states the law is still to the effect that consequential damages are recoverable only where one established grade is changed to another, and that, until the grade is actually established and acted upon, the municipality is not liable for consequential damages. In other words, the city is given the right to depart from the natural or surface grade and establish a different one without liability, if not otherwise liable for negligence or' want of care in constructing the improvement. This, however, is not the law under constitutional provisions like ours, which is thoroughly demonstrated by the following, among other cases upon the subject: [Citing numerous cases.]” This holding was made in virtue of the Constitution, that “private property shall not be taken or damaged for public use without just compensation.” Thus, in making street improvements, though in accordance with a first or an initia] grade, yet if abutting property is injuriously affected and. damaged, the owner, under the Constitution, is entitled to compensation for the same reason that he is entitled to compensation when the injury and damage is occasioned on a changed or re-established grade. Both rest on the same constitutional provision requiring compensation for damage to private property for public use. The basis for compensation is not, Was the property damaged by making street improvements in accordance with an initial and official grade established by the municipality, or in accordance with a changed or re-established grade? but, Was private property taken or damaged, for public use? If it was so damaged, then the owner is entitled to compensation, unless he in some way estopped or barred himself, or otherwise forfeited his right thereto. So [34] in making street improvements, though in accordance with a first or an initial grade, yet, if the street or sidewalk, or both, is so far raised or lowered as to injuriously affect abutting property and materially to interfere with its ordinary use and enjoyment, or otherwise is damaged, there is no good reason why, under the Constitution, the owner is not entitled to compensation the same as though the injury and damage were occasioned on a changed or re-established grade. The requests run counter to this, and therefore were properly refused. Had the requests been that the city, without being liable for resulting damage to abutting property owners, had the right to make street improvements which merely corrected surface inequalities and irregularities and rendered the street more safe and convenient for travel, and which were no material injury or damage to abutting property, they very properly could have been given. But they went far beyond this, and to the extent that the abutting property owner was not entitled to compensation, no matter how injuriously his property was affected and damaged, if the improvements made by the city were not negligently or unnecessarily done, and were made to render the street better and more safe and convenient for the traveling public. This, by reason of the constitutional provision, is not in accordance with -views heretofore announced by us. Hence we think the judgment should be affirmed, with costs. Such is the order. FRICK and McCARTY, J. J., concur.