Opinion
No. 33782.
October 2, 1939.
1. EMINENT DOMAIN.
The alleged result of the raising of grade of highway, in reducing market value of the property, was a proper element of damages.
2. EMINENT DOMAIN.
In proceeding to determine damages caused by raising grade of highway, evidence held not to authorize submission to jury of claim of damage from dirt fill across side street where it intersected the highway, which made use of side street inconvenient but did not inflict damage different from that suffered by the general public.
3. EMINENT DOMAIN.
The fact that property owners may have had occasion to drive along side street intersecting with highway where grade had been raised, and to endeavor to ascend dirt fill across side street resulting from the change of grade, more frequently than other members of the traveling public, would not be test of damages recoverable for change of grade.
4. EMINENT DOMAIN.
Evidence of details in which property will be damaged by change of grade of highway is admissible so far as it tends to show the effect of raising the grade on value of the property.
5. EMINENT DOMAIN.
Evidence of the destruction of sidewalk and filling up of drain on adjoining property, resulting from raising grade of highway, was admissible on issue of reduction in market value by change of grade, though specific damage to the sidewalk itself was not recoverable because sidewalk was part of the street.
APPEAL from the circuit court of Covington county; HON. EDGAR M. LANE, Judge.
E.R. Holmes, Jr., Assistant Attorney-General, for appellant.
It is appellant's contention that the lower court erred in overruling defendant's motion to exclude and likewise erred in refusing defendant's request for peremptory instruction for the reason that plaintiffs' declaration alleged certain damages to the property of plaintiffs which abutted on the newly constructed Highway 84 in the Town of Collins, Covington County, Mississippi, and plaintiffs' proof wholly failed to show any actionable damage whatsoever; all damage which was shown being either damnum absque injuria or general injuries shared by the public in general.
Mississippi Constitution of 1890, Section 17; Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162; Schlicht v. Clark, 114 Miss. 354, 75 So. 130; 20 C.J. 677.
It is our contention that no damage to plaintiffs' property was proven. It is unquestionably true that this suit was based on Section 17 of the Constitution of 1890, and particularly that part of it providing that private property shall not be damaged for public use except on due compensation. In all probability plaintiffs attempted to draw their declaration so as to follow the case of Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162, and although the declaration in part alleged actionable damage, no actionable damage was proved on the trial. Only two elements of damage which plaintiffs attempted to prove, being (1) damage occasioned by change of grade of the sidestreet where it entered or intersected Highway 84, and (2) damage occasioned by the washing of the sidewalk in front of plaintiffs' property, which sidewalk although constructed by plaintiffs, was not on plaintiffs' property. It appears that both of these items of damage are general injuries, shared by the public in general.
Schlicht v. Clark, 114 Miss. 354, 75 So. 130; Orgel on Valuation under Eminent Domain, Note 26, page 22; 20 C.J., pages 677 and 739.
W.U. Corley, of Collins, for appellees.
Lets try out the side walk proposition first; it is shown and undisputed that it was made by appellees; that it was drained before the construction, and the drain filled by the construction; that the side walk was the higher before construction, and washed away by the construction. Have appellees any different interest in this, from that of the general public? Is it not true that an adjoining owner to a side walk has a different interest from that of the general public? These questions are answered by Caldwell v. George, 50 So. 631, 96 Miss. 484.
Brahan v. Meridian Home Tel. Co., 52 So. 485, 97 Miss. 326.
Sidewalks are a part of the street, set apart for pedestrians; the word "street" as ordinarily used, includes the sidewalk.
28 Cyc. 833.
An abutting owner has two distinct kinds of rights in the street, the public one which he enjoys in common with all citizens, and private rights which arise from his ownership of contiguous property. Among the private rights are the free and unimpeded ingress and egress to and from his property, 28 Cyc. 856. We have the same law applicable to sidewalks, as to streets, because they are the same, one in the other. Abutting owners have an indefeasible right of access to and from their property to the street.
28 Cyc. 863.
The abutting owner has an interest in the street peculiar to his situation, and distinct from any he may claim as a citizen of the municipality.
Long v. Wilson, 119 Iowa 267; Perry v. Castner, 124 Iowa 386, 2 Ann. Cas. 363; Mississippi Constitution of 1890, Section 17; City of Vicksburg v. Herman, 72 Miss. 211; City of Jackson v. Williams, 92 Miss. 301.
In Rainey v. Hinds County, 78 Miss. 308, the highway drained water on appellant's lands, and this court reversed and remanded the case for trial, because his property was damaged.
In Blair v. Charleston, 48 W. Va. 62, 64 Am. St. Rep. 837, a case where an embankment was created in front of lot, or residence, on the question of established grade, that court said: "If a street of a city or town is a public street, though no grade for it has ever been fixed and is used upon the natural surface grade and improvements have been made on lots lying upon it, with reference to such grade, before any grade line is ever established and the natural surface is changed to its injury, it is answerable in damages. In estimating the damages, it is proper to consider the expenses of adjusting the property to the new grade, the cost of filling, injury to the trees, and the raising of houses. In fact all things causing a diminution in the value of the property are to be considered."
City Council v. Scharameck, 96 Ga. 426, 51 Am. St. Rep. 146; Murphy v. City of Meridian, 103 Miss. 110, 60 So. 48.
This appeal is from a judgment of the Circuit Court of Covington County rendered in favor of the appellees in the sum of $250 for damages alleged to have been caused by the appellant in raising the grade of Highway No. 84 in front of their residence property within the corporate limits of Collins, Mississippi.
The appellees own an entire block of land fronting on the said Highway No. 84, the right of way of which is 100 feet in width, but within which the abutting property owners on each side thereof constructed gravel sidewalks a few years ago with the consent of the municipality, and which were placed within a ten foot strip of said right of way abutting their respective properties. It appears that before the grade of the highway was raised, there was a drain for water alongside of the sidewalk in front of the residence of the appellees, but that when the grade of the highway was raised the drain was filled by dirt washing from the road-bed, and which caused the gravel sidewalk to be washed away by rains. Due to the fact that appellees had constructed a concrete curb on their front property line, there was no overflow of any of their property, and their claim of damage to the property consisted in the reduction of the market value of the property by reason of the raising of the grade of the highway, the difficult accessibility thereto from in front of the residence and the other above-mentioned consequences resulting therefrom.
We are of the opinion that the alleged results of the raising of the grade of the highway was a proper element of damages, but there was no proof offered on the specific question as to what was the fair cash market value of the property before the grade of the highway was raised and its fair cash market value thereafter. Proof merely tended to show what it might cost to restore the gravel sidewalk and to remedy the condition complained of regarding the drain so as to prevent its recurrence. See City of Meridian v. Higgins, 81 Miss. 376, 33 So. 1; Schlicht v. Clark et al., 114 Miss. 354, 75 So. 130, for a statement of the rule as to the measure of damages in such cases.
The garage of the appellee fronted on a side street which intersected Highway No. 84. The grade of the side street in front of the garage was not changed. However, the proof disclosed that a dirt fill was constructed by the appellant across this side street where it intersected and crossed the said Highway No. 84. The appellees complained that this fill was so steep that they were unable to drive their car up onto the highway at this point of intersection, and that this was especially true during rainy weather. The court below allowed the case to go to the jury on this claim of damage, but we are of the opinion that the proof offered by the appellees failed to show that they suffered any damage on account thereof different to that suffered by the general public in the use of the said side street. The fact that the appellees may have had occasion to drive along this street, and endeavor to ascend this dirt fill more frequently than would other members of the traveling public, would not be the test. The same inconvenience was experienced by others when they would undertake to use the side street at that point as was experienced by the appellees. Hence there could be no recovery of damages on that item of the claim.
Referring again to the damage claimed on account of the gravel sidewalk being washed away in front of the residence, it is true that the sidewalk was located in the street or right of way of Highway No. 84. The rule is that evidence as to the particulars of details in which the property will be damaged is admissible insofar as the same tends to show the effect of the raising of the grade of the highway on the value of the property, and this rule would permit the introduction of evidence to show the destruction of the sidewalk and filling up of the drain to the same extent that such rule would permit evidence to show the raising of the grade of the highway, on the issue of showing that the fair cash market value of the residence property of the appellees had been damaged by what was done by the appellant in making the improvement in question, although the specific damage to the sidewalk itself may not be recovered on account of the fact that it was a part of the street.
Under the circumstances, we have concluded that the case should be reversed and remanded for a new trial in accordance with the principles herein announced.
Reversed and remanded.