The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1872-09-07
The Power OF a City TO Alter Grades.
The question In Richmond.
(From tho Richmond whig.)
POWER OF TIE CITY TO ALTER GRADES.

| ltTom inc RICHMOND WhRJ
POWER OF THE CITY TO ALTER GRADES.
OFFICE OF CRY ATTORNEY, |
RcHNoND, Va, August 81, 1872. I
In the matter Of the petition Of Charles
Ileinlein. Respectfully returned 10 the
Committee on Streets Generally.
The petitioner alleges that some three
years ago the City Engineer altered the
grade Of Main street, upon its extension
through Sidney, and that desiring 10 con-
form his house on tho south side OF said
street to the grade then fixed, he raised
the house some five feet above the old
level and one foot above the grade as then
established, at q cost Of 1895. He futher
alleges that the Engineer now in office
has again changed the grade Of the street,
raising 1t three ieeet higher, and that his
house is now below the level Of thestreet,
much TO his injury and inconvenience.
lie prays that he may be compensated
for the damage, or that the house may be
raised 70 the existing grade at the expen.
Sc OF the city. He does not state the
amount Of damage or expense 70 which he
has been or may be subjected.
The case thus presented Is hard one,
but in my judgement It Is devoid Of legal
merit. BY the laws Of the Commonwealth
private property can only be taken for
public use upon the payment Of just
compensation, but neither the charter Of
the city no the general law make provis-
Ion for indirector consequential damages
resulting from work done by a public
corporation upon Its own property. Tho
7th clause, section 10Th, chapter 5 Of the
charter OF Richmond, gives to the City
Council power ITO close or extend, widen
or narrow, lay out and graduate, pave and
otherwise improve streets or public alleys
in the CITY,"
This power is continuing power, to be
exercised whenever in the opinion Of the
Council the public veal requires. It is
most questionable whether the city can
bidd itself by an ordinance or express
contract in any form, not to change the
grade Of Its streets, even il such grade
should be established by the same ordi-
nance or contract. No legislative body
can rightiully disable itself from discharg.
ing its public trusts. It's powers are not
to be bartered away when the interests of
society may demand their exercise. 1t
can and should exercise them again and
again, as often as the convenience or ne
cessities otthe body polite may dictate.
In the exercise Of such powers, municipal
corporations are not liable for the incident.
al damage that may result from their &C
ton.
Whatever the work may be, II should
be done with proper care and skill; II
there be negligence or malice on the part
Of the city's agents in the performance Of
such work, the city may have to respond
for the damage resulting from such negli.
gence or malice. 1t often happens that
the property Of the citizen suffers Indirect
injury from the construction Of public
works. The opening ofa new street may
advance the interest Of one set OF men at
the expense Of another. The construction
Of railroads has often destroyed the buis-
ness OF stage line. The establishment
OF pest.house, hospital, market or Jail,
may greatly depreciate the value ofprop-
erty in the immediate vicinity, But in
none OF these cases has it been held that
the owners oil the property were entitled;
as Of right, TO compensation for the dam
age sustained. The interest Of the citizen
must yield to the public good, and the
sacrifice is but part Of that price which
men pay for the several condition, and
other illustrations might be given OF this
species Of damage, which the laws terms
dGnRum abSqlB ivuriG, and for which no
action can be maintained, but 1t may be
better to refer to some cases directly In
point.
II. CALENDER rS. MarGt. Reck, All:
The surveyor oil highways was charged
with digging down street in Boston, so
as to lay bare the foundation Of the plain.
tiff's house and endanger its falling.
The authority under which this official
acted was very similar to that conferred
by the charter Of Richmond, under which
action was had in this case. The court
held that the surveyors act was lawful,
and that the plaintiff had no valid legal
claim for the damages or expense to which
he was subjected.
In Green US. Borough of Reading, 0 Watts,
r. $50: The defendant, by virtue Of an
authority ITO improve and rcpair," graded
the streets In front Of the plaintiffs house
five feet higher than it had been before, and
1t was held that the corporation was not
liable for the consequential damage to the
plaintiffs property by reason OF any such
improvement or change of grade in the
public streets. . nc. 9aaa- ..1I
In OC0nRer %. PjttSbltGg, 10 Pam r i:
A church had been built according to. the
direction oil the city regulator and BY q
grade established years before; subse-
quently by an ordinance of the city, the
street was lowered ~ seventeen feet.
The church had to DO taken down aud re-
built on q lower foundation at an expense
Of $4,000. The authority given 10 the city
was "to improve, repair, and keep in Or
der the streets"
The case was twice argued, and the
court struggled hard 10 relieve the plain
tiff, but declared that it was grieYed 10
find the law too firmly settled TO do other
wise than to dismiss his complaint, Nu-
merous other cases might be cited to the
same effect. The case Of the City OIL
Richmond vs.. Longs administrator, 18th
Grattan R, 975, Is quite pertinent and
gives sanction to theprincipies here invok'
ed, although the precise question under
consideration was not involved in its de-
cision.
There is, however, such an overwhel-
ming weight of authority outside Of the
State in support OF the conclusions now
submitted, that therd but little room L
doubt their enforcement by the Virginia
courts.
(Signed) LEIGH r. PAGE,
City Attorney.
Extent of Party Allegiance.