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(-Idaho, -> 232 Pac. 578.)

Dec. 89; Smith v. Washington, 20 How. 135, 15 L. ed. 858; Macy v. Indianapolis, 17 Ind. 267; 1 Elliott, Roads & Streets, 554; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336; Talcott Bros. v. Des Moines, 134 Iowa, 113, 12 L.R.A. (N.S.) 696, 120 Am. St. Rep. 419, 109 N. W. 311; Wilson v. New York, 1 Denio, 595, 43 Am. Dec. 719; Rome v. Omberg, 28 Ga. 46, 73 Am. Dec. 748; Talbot v. New York & H. R. Co. 151 N. Y. 155, 45 N. E. 382; Morris v. Indianapolis, 177 Ind. 369, 94 N. E. 705, Ann. Cas. 1915A, 65; Nampa v. Nampa & M. Irrig. Dist, 19 Idaho, 779, 115 Pac. 979; 4 McQuillin, Mun. Corp. § 1844. Budge, J., delivered the opinion of the court:

This action was brought by appellant, the owner of property abutting upon a public street, to recover damages alleged to have been caused by the regrading of such street by respondent. The complaint in substance alleges the ownership of the property; that respondent is a municipal corporation; that the public street abutting on appellant's property was dedicated to respondent, and has been used as such for over thirty years; that the city regraded and improved this particular street in 1910 and 1911; that the residence upon appellant's property abutting on said street and the improvements thereon were constructed and made to correspond with the established grade of 1910 and 1911; that in 1919 the city regraded said street and destroyed water and sewer pipes, and lowered the level of the street approximately 5 to 6 feet in front of the property, thereby depriving the property of necessary lateral support, and causing it to be deteriorated and otherwise injured to the extent of $2,500; and that just compensation has not been paid for such injuries, although claim therefor was filed, nor has respondent acquired the right from appellant to so injure his property.

To the complaint a general and special demurrer was filed and sustained. Appellant declined to amend, and thereafter judgment

38 A.L.R.-2.

was entered, dismissing the action. This appeal is taken from the order sustaining the demurrer and the judgment dismissing the action.

An order overruling or sustaining a demurrer is not an appealable order within the

Appeal-order

meaning of Comp. on demurrer. Stat. § 7152. Jones

v. Quayle, 3 Idaho, 640, 32 Pac. 1134. We will therefore consider only the appeal from the judgment.

Appellant predicates error upon the action of the court in sustaining the demurrer and dismissing the action. The demurrer involves the question as to whether a municipality is liable in damages to the owner of property abutting upon a public street for injuries resulting to such property caused by the regrading of such street for the use of the public. It is the contention of appellant that under the Constitution and laws of this state just compensation is required to be paid for the taking, damaging, or injuring of private property for public use, and that the municipality is liable for damages so sustained. It is respondent's contention that such injuries or damages as alleged in the complaint are consequential damages or damnum absque injuria, for which no recovery can be had.

Article 1, § 14, of the Constitution, provides that "private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor."

This provision of the Constitution is unlike constitutional provisions on the same subject in some other states, in this, that the words "or damaged" are inserted after the word "taken," and under such a provision damages caused by regrading of public streets may be recovered by the abutting landown

ers.

1 Lewis, Em. Dom. 3d ed. § 348, p. 629. Under the provisions of article 1, § 14, supra, municipal corporations, in order to acquire a right to establish a public highway,

Damageseminent domain

sation to be made.

where the same has not been dedicated to public use, must first pay a just compensation for the land so -when compen- taken. When So taken the municipality is authorized, under the provisions of Comp. Stat. § 3942, among other things, to grade or establish grades of streets, and repair and maintain the same. Macy v. Indianapolis, 17 Ind. 267; 4 McQuillin, Mun. Corp. § 1844, p. 3963. The rule would seem to be, under the above constitutional provision, that any damages or injuries sustained by the owner of abutting property are but consequential damages, or damnum absque injuria, for which no recovery can be had; for the reason that all such damages are included in the payment of a just compensation when the land was taken. It was held in the case of Nampa v. Nampa & M. Irrig. Dist. 19 Idaho, 779, 115 Pac. 979, following Smith v. Washington, 20 How. 135, 15 L. ed. 858, that under the provisions of § 2238, Rev. Codes, subd. 3 (now Comp. Stat. § 3942, supra), municipalities have the power, among other things, to grade and establish grades, and repair and maintain the same, and, for damages incidentally resulting to abutting property from the lawful exercise of the power so conferred, they are not liable to the owner, in the absence of a statute expressly imposing such liability. Our attention has not been called to any such statute. See also, to the same effect, Talbot v. New York & H. R. Co. 151 N. Y. 155, 45 N. E. 382; Morris v. Indianapolis, 177 Ind. 369, 94 N. E. 705, Ann. Cas. 1915A, 65. In the case of Idaho-Western R. Co. v. Columbia Conference, 20 Idaho, 568, 38 L.R.A. (N.S.) 497, 119 Pac. 60, which was an action brought under the eminent domain statutes for the purpose of determining the value of the property sought to be taken, and damages to the property not taken, in the course of that opinion it was held that damages should be assessed

once and for all time, and should be based upon the most injurious use to which the condemner may lawfully put the property. If this is a correct statement of the rule, at the time the municipality acquired the right of way for street purposes, appellant or his predecessor was given damages once and for all time, based upon the most injurious use of the land reasonably possible to which the city might lawfully put it. This would be true where the city acquired the property either by dedication or condemnation, and the damages sought to be recovered were included in the just compensation required to be paid under the provisions of the Constition above quoted. Eminent doWhere a street or main-waiver of highway becomes compensation such by dedication, compensation for the easement is expressly waived by the dedicator. Morris v. Indianapolis, supra; Rauenstein v. New York L. & W. R. Co. 136 N. Y. 528, 18 L.R.A. 768, 32 N. E. 1047.

-dedication.

as taking.

Under the almost unanimous decisions of the various state courts and the United States Supreme Court, the rule is announced that changing the grade -changing of streets by a mu- grade of street nicipality does not amount to a taking within the meaning of article 1, § 14, of our Constitution. Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336; Callender v. Marsh, 1 Pick. 418. In the case of Talcott Bros. v. Des Moines, 134 Iowa, 113, 12 L.R.A. (N.S.) 696, 120 Am. St. Rep. 419, 109 N. W. 311, the court held that a city may, in the exercise of its lawful powers, in bringing a street in which it owns the fee to the re-established grade, excavate therein so that the soil of an abutting lot will slide into the street, without incurring liability for taking property without compensation, or for removing the lateral support. The lateral support rule would seem to as taking.

-removal of

be well settled that, in the absence

(— Idaho, 232 Pac. 578.)

of constitutional or statutory provisions requiring compensation for property injured as distinguished from property taken, no damages can be recovered by the abutting owner for consequential damage resulting from the elevation or depression of streets, where the municipality has not transcended its authority, but acted within its jurisdiction in the interest of public safety and convenience.

There is a well-marked distinction which fixes the liability of a municipality when acting in a gov

ernmental or a proprietary capacity, which is pointed out in the case of Boise Development Co. v. Boise City, 30 Idaho, 675, 167 Pac. 1032. The grading or regrading of streets is a governmental function.

It follows that the court properly sustained the demurrer to the complaint, and dismissed the action. The judgment of the lower court must be affirmed, and it is so ordered. Costs are awarded to respondent.

McCarthy, Ch. J., and William A. Lee and Wm. E. Lee, JJ., concur.

ΑΝΝΟΤΑΤΙΟΝ.

Liability of municipality for injury to lateral support in grading street.

I. Introductory, 19.

II. Rule that municipality is liable, 19. III. Rule that municipality is not liable, 20.

IV. Effect of negligence, 20.

I. Introductory.

The prior decisions upon this question will be found in the annotation upon the same subject in 7 A.L.R. 806. II. Rule that municipality is liable. (Supplementing annotation in 7 A.L.R. 806.)

An abutting owner recovered a judgment for damages, on the theory of a continuing nuisance, in Island Lime Co. v. Seattle (1922) 122 Wash. 632, 211 Pac. 285, where the city, in regrading the street, removed the lateral support of the property, causing a continual sliding of the ground into the street, which resulted in the destruction of the building upon the land. That the original improvement of a street to the prior established grade, requiring a lowering of the street from its natural level by a cut or excavation which would deprive an abutting owner of his right to lateral support, thereby leaving his lot and building walls, constructed before the establishment of the grade, unprotected and exposed, and in danger of being precipitated into the street, would be a taking of his property within the meaning of the Constitution, for which he would be entitled to compensation,

was conceded in Orr v. Cincinnati (1914) 17 Ohio N. P. N. S. 201, where the question was whether compensation had to be made before the commencement of the improvement. The plaintiff claimed that the right to compensation for deprivation of the right of lateral support was independent of any right which he might have for damages incident to a change of grade; and the court said that it was clearly established in Ohio that the right of lateral support was not a mere easement, but a part of the owner's property in the land, and that it was a right of property which attached to the soil and passed with it, and existed against municipal corporations as well as individuals.

That a municipality is liable to an abutter for damages to his property by reason of the grading of the adjoining street was not disputed in Lynn v. Dunmore (1923) 80 Pa. Super. Ct. 590, where the only question was as to the amount of the damages, the measure of damages being stated to be the difference in value between the plaintiff's property as a whole immediately before the change of grade and immediately thereafter; and it was held that the cost of a retaining wall built by the plaintiff to prevent his property from washing away was not a separate item of damage, but might be taken into consideration in arriving at the value of the property im

mediately following the change of grade.

The necessary withdrawal of lateral support to land not taken, in the proper construction of a street, is a proper element of damages, recoverable by the owner of the land taken, in condemnation proceedings to acquire land for the opening of a street. Kukkuk v. Des Moines (1922) 193 Iowa, 444, 187 N. W. 209.

A city, on taking the land or the easement of an abutting owner for the purpose of constructing a subway under the street, must compensate him for the cost of deeper and stronger foundations to his building, necessitated by reason of the loss of lateral support. Brooklyn Trust Co. v. New York (1919) 109 Misc. 593, 179 N. Y. Supp. 441.

III. Rule that municipality is not liable. (Supplementing annotation in 7 A.L.R. 807.)

A city, in the exercise of its lawful powers in regrading a dedicated street causing the soil of an abutting lot to slide into the street, is not liable to the lot owner in damages for the removal of the lateral support of the lot, for taking property without just compensation, such damages being consequential, or damnum absque injuria. CRANE V. HARRISON (reported herewith) ante, 15.

The city was held in Leadville v. McDonald (1919) 67 Colo. 131, 186 Pac. 715, not liable to an abutting owner for the destruction of a retaining wall in front of his lot by the reduction of the street to the grade first established by the city.

It was held in Canfield Rubber Co. v. Leary (1923) 99 Conn. 40, 121 Atl. 283, that if, in the construction of a sewer in the street by a municipality, injury to the right of lateral support of an abutting owner is unavoidable, the city may, after notice, proceed with the work, and injure such right of lateral support without liability; but if injury to such right of lateral support is avoidable by the exercise. of reasonable care, the city must use such care to avoid injury to the right of lateral support of the abutter.

IV. Effect of negligence. (Supplementing annotation in 7 A.L.R. 809.)

Lochore v. Seattle (1917) 98 Wash. 265, 7 A.L.R. 800, 167 Pac. 918, to which the earlier annotation was appended, is followed in Clark v. Olympia (1921) 117 Wash. 506, 201 Pac. 755, holding that a city is liable for the removal of the lateral support of abutting property in making an original grade of the street, not lower than the previously established grade, where the city is negligent in leaving a clay bank exposed, knowing or being charged with knowledge that it would result in disintegration of the bank and the sliding thereof when the same was subjected to the action of the elements.

And it was held in Porter v. Los Angeles (1920) 182 Cal. 515, 189 Pac. 105, that a city is liable to the abutting owner for injury to the lateral support of his property by its negligence in constructing a tunnel under the street. G. V. I.

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Municipal corporations, § 91 giving right of way to physicians at street intersections - validity.

Statutory authority to municipal corporations to prescribe reasonable

(— Md. —, 126 Atl. 82.)

traffic regulations does not include authority to give the right of way to physicians' cars at street intersections, where the statute gives such right to vehicles approaching from the right and no provision is made for identifying the physicians' cars.

[See note on this question beginning on page 24.]

APPEAL by plaintiff from a judgment of the Baltimore City Court (Stump, J.) in favor of defendant in an action brought to recover damages for personal injuries for which defendant was alleged to be responsible. Reversed.

The facts are stated in the opinion of the court.

Messrs. Walter L. Clark and Bowie & Clark, for appellant:

Section 15 of the ordinance does not, by its language or obvious purpose, give a permit-holding physician the right of way over all other ordinary vehicles.

19 R. C. L. 810; Kupelian v. Andrews, 233 N. Y. 278, 135 N. E. 502; Levering v. Williams, 134 Md. 53, 4 A.L.R. 374, 106 Atl. 176.

The ordinance, if applicable to physicians, is in conflict with the state law.

Balthasar, v. Pacific Electric R. Co. 187 Cal. 302, 19 A.L.R. 452, 202 Pac. 37; Guidoni v. Wheeler, 5 Alaska, 229; 2 McQuillin, Mun. Corp. § 810, p. 1734; State ex rel. Ellis v. Tampa Waterworks Co. 56 Fla. 858, 19 L.R.A. (N.S.) 183, 47 So. 358; Dill. Mun. Corp. § 714; 19 R. C. L. 803, 804; Lee v. Leitch, 131 Md. 30, 101 Atl. 716; Helmer v. Superior Ct. 48 Cal. App. 140, 191 Pac. 1001; State v. Hyman, 98 Md. 596, 64 L.R.A. 637, 57 Atl. 6, 1 Ann. Cas. 742; Baltimore v. Radecke, 49 Md. 229, 33 Am. Rep. 239.

Messrs. Laurie H. Riggs and Randolph Barton, Jr., for appellee:

The ordinance is valid as to all the classes of vehicles therein referred to, and applies to street intersections.

State v. Brown, 142 Md. 27, 119 Atl. 684.

The ordinance does not, and could not, reasonably charge a driver observing the laws of the road, to discover at his peril the approach of one who is violating that law, and yield him the right of way.

Cook v. United R. & Electric Co. 132 Md. 558, 104 Atl. 37.

Urner, J., delivered the opinion of the court:

At the trial of this suit for personal injuries resulting from an automobile accident, the plaintiff

testified that, as the car which she
and several companions occupied
was moving southwardly at the in-
tersection of Guilford avenue and
Twenty-third street in Baltimore, it
was struck on the left side by the
defendant's car, approaching from
the east, and was diverted by the
impact to the sidewalk and against
a building. Both cars were moving
at a moderate rate of speed, accord-
ing to the plaintiff's testimony. The
accident occurred in the daytime,
and the occupants of each car
readily observed the movement of
the other as they neared the point
where their lines of progress would
cross. It was assumed by the plain-
tiff, and by her sister, who was
driving their car, that they had the
right of way, and that it would be
duly recognized by the defendant in
approaching with his car from the
left. An alleged violation of that
right is the primary ground of the
liability asserted in this action. In
the pleadings and proof the de-
fendant was also sought to be
charged with responsibility, apart
from the effect of the right of way
rule, on the theory that he could
have avoided the collision by the
exercise of due care, after he be-
came aware of its imminence.

The plaintiff's description of the accident was corroborated by other testimony, but a wholly different version was given by the defendant and his witnesses. They testified that he actually conceded the right of way to the other car, and allowed it to pass before he proceeded beyond the center line of Guilford avenue, and that the two cars never

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