Fellowes v. City of New Haven.

cover the right to compensation has been denied in every State in the Union where the question has arisen except in the State of Ohio. Perhaps, also, the State of North Carolina should be excepted. We will not stop to enumerate the cases thus decided but will content ourselves with a brief reference to the Ohio cases to see how far they sustain the petitioner's claim.

We repeat here what we have already said in another connection, that not one of those cases was a petition in chancery seeking the interference of a court of equity with a municipal corporation in the discharge of a governmental duty.

The last decision in that State on this subject which we have seen is the case of City of Cincinnati v. Penny, 21 Ohio St. 499; 8 Am. Rep. 73. That case was decided in 1871. The case was this: The city made an excavation in a public street for the purpose of constructing a sewer. The foundation walls of the plaintiff's building which were four feet below the surface of the ground, were thereby weakened and the building injured. The court held that the city was not liable. The court states the question and answers it as follows: "Are municipal corporations, under the laws of this State, liable for damages to proprietors of lots abutting on streets and alleys, for injuries to buildings erected thereon, resulting from the exercise of their corporate powers in improving or appropriating such streets and alleys to public uses, while acting within the scope of their municipal authority, and without negligence or malice? Strictly, this question should be answered in the negative. But in the ordinary application of the principle involved, neither an unqualified affirmative nor negative answer would be a fair statement of the rule of law upon this subject."

An affirmative answer is qualified by holding that the abutting proprietor must not have contributed to his injury by his own negligence or indiscretion; that he must have acted prudently under the circumstances of fact which then surrounded him, and must have taken into consideration the right of the municipality to make future improvements in the streets, and to appropriate them to other public uses, within the scope of its authority.

A negative answer is thus qualified: "That the municipality, before such lot was improved, had taken no such action in the matter of improving or appropriating such street or alley to public uses as to reasonably indicate that the uses and improvements of the street or alley were permanently fixed and appropriated."

Fellowes v. City of New Haven.

We remark here, parenthetically, that this qualification would exempt these respondents from liability in the State of Ohio.

The court then proceeds to put its own interpretation upon the cases previously decided in that State. We must accept that interpretation as the law of that State to-day. We quote at length, as it obviates the necessity of any further reference to the cases cited.

"We believe that all the cases heretofore decided by this court upon this subject can be reconciled upon the principle stated; although the language employed by different judges in delivering opinions may not be reconcilable. In Goodloe v. Cincinnati, 4 Ohio, 500, it was held that a municipal corporation was liable for injuries to a house where the street was illegally and maliciously cut down by the municipal authorities. In Smith v. Cincinnati, 4 Ohio, 500, it was held that the corporation was liable for such injuries, in the absence of malice, if its acts were illegal. In Scovil v. Geddings, 7 Ohio, 211, it was held that the agents of the corporation were not liable for injuries to a house and lot, where no unnecessary damage was done, and they acted in good faith and under the authority of the trustees. In Hickox v. Cleveland, 8 Ohio, 543, it was held that the city was not liable where the municipal authorities acted without negligence and within the scope of municipal authority. Rhodes v. Cleveland, 10 Ohio, 159, was a case where the injury complained of was to the land (and not to structures thereon) by causing it to be overflowed by water from drains and ditches. The corporation was held liable. But a distinction may well be taken between that case and one for injury to a building erected on a lot without reference to proper and reasonable drainage of the street. The next cases are McCombs v. Akron, 15 Ohio, 474, and Akron v. McComb, 18 id. 229. In these cases it was held that a municipal corporation is liable for injuries resulting from a change of grade, whereby the means of access to a building erected on an abutting lot were cut off or impaired. It appears, however, that the building was erected with reference to an established grade, and the injury resulted from a change in the grade. AVERY, J., in delivering the opinion of the court in the latter case, says: He (McCombs) had made his improvements with an express view to the level and grade of Howard street, adjoining which the building stood.”” Crawford v. Delaware, 7 Ohio St. 459, is then cited and commented on, and the

Fellowes v. City of New Haven.

doctrine of the case approved. In that case it was decided, "that when such corporation, in the exercise of its legal powers, makes a reasonable and proper grade of its streets, without touching or doing unnecessary injury to the unimproved property of owners along the streets so graded, and when such grading is not unreasonably, improperly or wantonly done by such authorities, they are not guilty of such a wrong as will make them liable to action, even though some damage may result to such owners of property along the street by such grading."

The court then refers to the case of The Street Railway v. Cumminsville, 14 Ohio St. 523, and quotes from it approvingly as follows: "The acquisition of land for a highway of any kind carries with it the right to put the ground in a suitable condition to answer the purposes of the acquisition, and to this public right all private rights of lot owners are necessarily subordinated. If, before the public has exercised this right through the regularly constituted authorities, the lot is improved, the owner must make the improvement with reference to the reasonable and proper exercise of the right thereafter; and cannot complain if his means of access to his improvements are impaired through his own indiscretion. But when the public has taken possession and regularly defined the interests and improvements necessary for its uses, establishing grades, etc., lot owners have the right to assume this exercise of authority as a final decision of the wants of the public, and to make their improvements in reference to it."

We have dwelt upon this case, not for the purpose of showing what the law of Connecticut is, for in some respects the law of this State is confessedly different, but for the purpose of showing that even in Ohio the law is so that if the petitioner was suing in their courts he probably could not recover. The current of authority, therefore, as it seem to us, is decidedly against the claim of the petitioner.

If we look at this question independently of decided cases we shall come to the same result. When a man purchases real estate to be used for a particular purpose, he necessarily acquires the right, so far as the grantor is concerned, to use all lawful means to accomplish that purpose, and the grantor cannot complain of any incidental injury resulting from such use. Presumptively he demanded and received compensation accordingly. So when the city of New Haven took a portion of the petitioner's land for the

Fellowes v. City of New Haven.

purposes of a street, it must be presumed that they took, as an incident thereto, a right to establish the grade according to their own judgment, and to bring the street to that grade without further compensation. This presumption necessarily arises from the nature of the transaction and the well-established and well-known powers and duties of municipal corporations in respect to streets and highways. The obligation to construct and maintain public streets carries with it the right to determine the grade; and such a grade must be established as will accommodate the public travel. And whenever from any cause public convenience demands that the grade shall be changed, it is the duty of the corporation to change it. All this must have been known and considered at the time the street was laid out.

This view of the case imposes no hardship upon the individual land-owner. The topography of the land through which a street runs is apparent to the eye; the connection with other streets at either end is equally apparent. The grade can be determined and the amount of cutting and filling can be estimated with reasonable certainty. The probable use of the land abutting on the street, and its value as affected by opening the street, are proper subjects of consideration in awarding damages and assessing benefits. These considerations are not limited to the present grade and use, but appraisers will invariably forecast the future. In addition to this it will be remembered that appraisers and juries called upon to award damages in such cases are always disposed, and justly so, to make full compensation.

It is absurd to claim that the city could only prepare a road-bed upon the surface of the ground as it then was. Both reason and experience teach us that is not the way in which public improvements are made in our cities and large towns. The road-bed must of necessity be lowered in some places and raised in others. If by the original lay-out the city acquired the right to do this to any extent, where is the limit? Was it at one foot or at eight feet? Or was it at some intermediate point? Manifestly the court can establish no limit to the power and discretion of the city so long as they act reasonably and with due regard to the rights of others. In cases of extreme hardship possibly there may be a remedy, as in the Kentucky cnse above referred to. Such cases, however, are of rare occurrence and are not to be anticipated.

Our conclusion therefore is, upon principle and authority, that

Fellowes v. City of New Haven.

the petitioner, in contemplation of law, has already received compensation for all the damage he will sustain, and that the petition on that ground also must be dismissed.

Judgment affirmed.

NOTE BY THE Reporter. · -This case is in accordance with the almost unanimous current of judicial authority in this country and in England. The authorities are so well grouped in the argument of the defendant's counsel that we extract a portion of it, having taken the pains to verify its citations:

"There is no taking of lands in any legal or constitutional sense of that term. Such is the doctrine in all the States of the Union where the question has arisen (with the exception of the State of Ohio, and possibly some qualification of the doctrine in the State of Kentucky), and also in the Federal courts and in England. The following cases establish this proposition: In the State of Massachusetts- Callender v. Marsh, 1 Pick. 418; Brown v. City of Lowell, 8 Metc. 172. In the State of Connecticut - Hollister v. Union Co., 9 Conn. 436; Hooker v. N. Haven and Northampton Co., 14 id. 146; Bradley v. N. York and N. Haven R. R. Co., 21 id. 294; Clark v. Saybrook, id. 313; Skinner v. Hartford Bridge Co., 29 id. 523; Burritt v. City of New Haven, 42 id. 174. In the State of Maine Mason v. Kennebec and Portland R. R. Co., 31 Me. 215; Hovey v. Mayo, 43 id. 322. In the State of Rhode Island - Rounds v. Mumford, 2 R. I. 154. In the State of New York- In re Furman Street, 17 Wend. 649; Graves v. Otis, 2 Hill, 466; Wilson v. Mayor, etc., of New York, 1 Denio, 595; Benedict v. Gort, 3 Barb. 459; Waddell v. Mayor of New York, 8 id. 95; Radcliffe's Er'rs v. Mayor, etc., of Brooklyn, 4 N. Y. 195; Mills v. City of Brooklyn, 32 id. 489. In the State of Pennsylvania - Green v. Reading, 9 Watts, 382; Henry v. Pittsburgh & Allegheny Bridge Co., 8 Watts & Searg. 85; Charlton v. Allegheny City, 1 Grant's Cas. 208 O'Connor v. City of Pittsburgh, 18 Penn. St. 187; City of Reading v. Keppleman, 61 id. 233. In the State of Indiana --Snyder v. Rockport, 6 Ind. 237; City of Lafayette v. Spencer, 14 id. 399; Macy v. City of Indianapolis, 17 id. 267; City of Lafayette v. Bush, 19 id. 326 ; City of Lafayette v. Fowler, 34 id. 140; ity of Terre Haute v. Turner, 36 id. 522. In the State of Illinois - Roberts v. City of Chicago, 26 Ill. 249; Murphy v. City of Chicago, 29 id. 279, 287. In the State of Iowa - Creal v. City of Keokuk, 4 G. Greene, 47; Russell v. City of Burlington, 30 Iowa, 262; City of Burlington v. Gilbert, 31 id. 356. In the State of Missouri -Taylor v. City of St. Louis, 14 Mo. 20; Hoffman v. City of St. Louis, 15 id. 651. In the State of Arkansas-Simmons v. City of Camden, 26 Ark. 277; 7 Am. Rep. 620. In the State of Tennessee-Humes v. Mayor, etc., of Knoxville, 1 Humph. 403. In the State of Mississippi-White v. Yazoo City, 27 Miss. 357. In the State of Georgia -- Markham v. Mayor, etc., of Atlanta, 23 Ga. 402; Mayor, etc., of Rome v. Omberg, 28 id. 46. In the State of Louisiana-Reynolds v. Shreveport, 13 La. Ann. 426. In the State of Florida Dorman v. City of Jacksonville, 13 Fla. 538; 7 Am. Rep. 253. In the State of Wisconsin -- Alexander V. City of Milwaukee, 16 Wis. 247, 256. In the United States courts - Goszler v. Corporation of Georgetown, 6 Wheat. 593; Smith v. Corporation of Washington, 20 How. 135. In the courts of England - Cast Plate Manufacturers v. Meredith, 4 T. R. 796; Sutton v. Clarke, 6 Taunt. 29; Hall v. Smith, 2 Bing. 156. This current of authorities would be entirely unbroken but for certain decisions in the States of Kentucky and Ohio, which we perhaps ought briefly to notice. The former State adopted the doctrine of the other States in the case of Keasy v. City of Louisville, 4 Dana, 154, decided in 1836; but in the later case of City of Louisville v. Louisville Rolling Mill Co, 8 Bush, 416, decided in 1867, the right to recover was made to depend on the extraordinary and peculiar character of the injuries received in that particular case. Judge ROBERTSON dissented; holding, in accordance with the prevailing doctrine, that the magnitude of the injury made no difference in the principle involved. This decision is condemned by Judge DILLON in his work on Municipal Corporations, vol. 2, note to § 783. The cases cited on the other side from the Ohio reports go upon the ground that, if the cutting down of a street be for the good of all and the injury of one, there should be compensation. It is a singular fact that the two cases of Scovill v Geddings, 7 Ohio, 211, and that of Hickor v. City of Cleveland, 8 id 543, accord with the authorities in the other States; while in the case of Crawford v. Delaware, 7 Ohio St VOL. XXVI — 58