Opinion
Decided December 11, 1931.
Error proceedings — Bill of exceptions amended by agreement — Municipal corporations — Streets — Abutting owner's lateral support subject to right to grade and improve street — City not liable for destroying lateral support, when.
1. A reviewing court, by agreement of the parties, may order that a bill of exceptions filed therein be amended.
2. In a municipal corporation an abutting owner's right to lateral support in a street duly dedicated by his predecessors in title is subject to the right of the city to grade and improve the street; and if the city, pursuant to law, and without malice or negligence, destroys such lateral support in grading and improving such dedicated street, it is liable to said owner only when, under the established law of the state, it is liable for a change of grade or the establishment of an unreasonable grade.
ERROR: Court of Appeals for Summit county.
Messrs. Motz Morris, for plaintiff in error.
Mr. Bruce W. Bierce, city solicitor, for defendant in error.
In the common pleas court this cause was submitted upon an agreed statement of facts, designed to present and have decided a single question of law. Upon submission of the case in this court, the bill of exceptions, by agreement of the parties, was so amended as to include an important fact in the statement of facts therein.
Briefly stated, the facts are that the plaintiff, John R. Cloyd, owns a lot abutting upon a certain street in the city of Cuyahoga Falls, which street was duly dedicated by his predecessors in title; that said city improved said street according to plans duly adopted, and excavated in front of plaintiff's lot to a depth varying from nothing to six feet, and thereby deprived said lot of lateral support.
No change of an established grade or adoption of an unreasonable grade being involved, plaintiff is not entitled to recover damages for a change of grade, but it is claimed that plaintiff may recover for injury to his property caused by the removal of such lateral support, and that is the question to be determined.
It is conceded that the city acted legally and within the scope of municipal authority, and without negligence or malice.
The common pleas court rendered judgment for the city, and we are of the opinion that it was not error to do so.
We think that the cases in Ohio bearing on the subject justify the statement that in a municipal corporation an abutting owner's right to lateral support in a street duly dedicated by his predecessors in title is but an element of his general right in the street as an abutting owner, and is subject to the right of the city to grade and improve the street, and that if the city, pursuant to law, and without malice or negligence, destroys such lateral support in grading and improving such dedicated street, it is liable to said owner only when, under the established law of the state, it is liable for a change of grade or the establishment of an unreasonable grade.
In City of Akron v. Huber, 78 Ohio St. 372, 85 N.E. 583, as is fully shown by the original petition and record of the case, and by reference thereto by the Supreme Court in the statement of the case, a part of the claim of Huber was for damages for withdrawal of lateral support, and in disposing of the case the Supreme Court declared: "The doctrine recognized in this state respecting the liability of a municipality for injuries to improved abutting property resulting from changes in grades of streets does not extend such liability to a case in which no grade has been established prior to the improvement of the property and where the grade subsequently established is not unreasonable. (The City of Akron v. The Chamberlain Company, 34 Ohio St. 328 [32 Am. Rep., 367], approved and followed.)"
In the case of Chambers v. City of Akron, decided in this court on April 9, 1913, the question of liability for withdrawal of lateral support was not only presented, but it was the only question presented and decided. The record in that case discloses that no claim was made that there was a change of an established grade, and that the claim made was that the grade established was an unreasonable one. The jury, in answer to an interrogatory, found that the grade was not unreasonable, but found damages for the withdrawal of lateral support, the trial court having instructed the jury that damages could be assessed for withdrawal of lateral support even though the grade was a reasonable one. Upon review, this court held that it was error to so charge, and that there could be no recovery for withdrawal of lateral support if there was no change of an established grade, and the grade of the improvement was a reasonable one. That case, which presented only the question which is before us for decision in the instant case, was taken to the Supreme Court, and there the judgment of this court, denying the right of the abutting owner to recover for withdrawal of lateral support, was specifically "affirmed on authority of Crawford v. Village of Delaware, 7 Ohio St. 460, and City of Akron v. Huber, 78 Ohio St. 372 [85 N.E. 583]." Chambers v. City of Akron, 91 Ohio St. 437, 110 N.E. 1056.
We do not regard the case of Keating v. City of Cincinnati, 38 Ohio St. 141, 43 Am. Rep., 421, applicable.
The Keating case was not a change of grade case; the city was not improving an existing street, but was establishing a street and was required to acquire, by appropriation or otherwise, all property taken by the improvement, and required to pay for all damage done to property in making the improvement. The property of the plaintiff in that case was damaged; the plaintiff was not an abutting owner, his rights were not simply those of an abutting owner, and his right to lateral support was not in any way or to any extent subject to the right of the city to make the improvement. If the city desired to withdraw lateral support from his property which did not abut upon the improvement, it was its duty to acquire such right by condemnation or otherwise; and, moreover, the record in that case showed that the city did not exercise due skill and care in making the improvement.
The case of City of Columbus v. Williard, 7 C.C., 113, 7 C.D., 33, was a case of subjacent rather than lateral support, and the right to take away such support was not granted by the dedication of the street, nor did the improvement in any way involve the establishment or change of the grade of the street.
In the case at bar it is conceded that the lateral support was withdrawn by the city in grading the street, which had been duly dedicated to the public by plaintiff's predecessors in title; that the city acted legally, within the scope of its authority, and without negligence or malice; that there was no change of an established grade and that the grade established was not unreasonable, and we therefore hold that the city is not liable for withdrawing such lateral support.
Judgment affirmed.
PARDEE, P.J., and FUNK, J., concur.