Evening star. [volume] (Washington, D.C.) 1854-1972, 1876-04-22
DAMAGES CAUSED By CHANGE or GRAD.
Opinion Of District Attorney BIrney.
Legal Reasons Why Claims for Rent
Damages should Not be Paid.

Damages Sb0uld Not be Paid.
In reply to a communication from the
Senate Committee on the District OF Column
bia. enclosing Senate bill for the relief OF
/ property holders on the south side OF Penn-
! sylvanis avenue, between 14th and 18th
streets, with request for the views OF the
District Commissioners thereon, the latter
yesterday transmitted an opinion of VIM
Birney, ESQ, Assistant. Attorney for the
! District.
The bill is for the purpose OF indemnifying
the owners OF real estate for the alleged
! damage 10 their property by the alteration
of the grade made by the Commissioners APP
pointed by The act Of Congress Of June NIh,
$50, under which Pennsyl vania avenue was
| paved. and authorizes the District Commits
/ siOnerS 10 issue certificates OF Indebtedness
10 the amount of sd $50, bearing six Der
cent. interest, I'm favor ofsuch property hold
ers, such ceTtihcate> 10 be receivable Tor
| ,peclai and general taxes and for all other
General BiTney SAYS LAS 20 bi!I OF this
/ kind has ever been passed by Congress, aud
as there are thousands OF similar claims
/ which will be pressed upon Congress II this
! bill should be passed, il is a matter OF great
| importance that ii should not be without fun
/ based. This principle a new one. The estab.
! lishment of which will be detrimental 10 the
welfare OF this District, as precedent, Will
| have been established by which the deot of
/ this District will be largely increased. TIE
| law of March I4th, lSs6, fOrbids any official
OF the District TO aid or bet In the increase
| offence by heavy fine aud Imprisonment.
! TIE principle OF this bill is opposed TO the
ore adopted by the courts OF England and
| this country as 10 the rights OF propr!etorS OF
! contiguous land. II will not De pretended
| that the right Of a private owner on Penn
sylv9uia avenue TO damages is greater, in
regard TO the United States, which owns the
| fee simple OF The avenue, than II would be i'm
regard TO the proprietor of contiguous lot.
| But every proprietor OF land is entitled by
| common right TO eXcavate upon his own
o. anx N.nfta nn.lF L.
vidcd ne does not deprive the owner OF the
| contiguous land of his right TO lateral support
nom the adjoining land SO far as is neces-
sary 20 sustain his own land In It's natural
state, not weighted by walls or buildings.
Authorities are quoted in support OF this
principle In the case of Wilde vs. Min
sterly, Roll abr. 565, IL was decided ID At II
\ be seized in fee OF land adjoining the land
OF Il, and A erect house upon his land, aud
any part OF his house is erected on the boun-
dSry between his lard so near TO the fOunda-
ton of A IS house, but not on AS land, that
by ii the foundation OF AS mouse and the
house Itself falls into the pit, stu no action
lies by against Il, tnaSmuch as il was AS
fault 10 build his house so near BIS land, for
he canrOt by his own act prevent = from
making the best use OF his land that he can.
lie can build up Il grade as well eXcavate.
Applying this principle 10 the claim OF the
owners OF land on Pennsylvania avenue
against the United States, the fee simple
owner OF said avenue, II is clear that they
have no right to damages, unless they can
sbOw that The United States committal a
trespass upon the land owned by them. or
did direct damage to their property. Bat
II Is not pretended that Tue claim
preferred by the owners against The
United States is because Of any treSpasS
upon their property, but because they now
desire TO change the grade OF their buildings
so as 10 enable them TO enjoy To better al
vintage the present grade OF the avenue.
This they are not obliged by any law 10 do.
Whether they make this impro yement or
not, is a matter within their own discretion.
| II they think best, they can retain their
4 ant a
| also the benefit of The -enue owned BIZ the
nited States. IL must be obvious that if
| the owners Of contiguous lots have claims OF
| damages against the District for grading the
streets, lt must be because each private
| owner has right 10 build house without
! regard 10 the general grade OF the streets of
The city. Such right would require the
| city TO conform perpetually TO the convent
ence OF the owners of property in grading.
| IL would be the right OF private owner TO
OuiId q house on the top of a hill in the
| midst OF the streets and 10 require the city
| TO conform the grade of the latter 10 the
! grade of his lots. Such right would simply
! Je the right to keep nuisance.
\ The general current Of decisions on tins
| subject establishes tee proposition that
| whenever a municipal corporation has con
| 1ned Itself within its legal authority in
| making the grade OF STIR els any cOnSeQuen-
| tial injury done To private owners or con-
| tiguous property is a ddn1pt5I odSIae iljI1'id,
| and municipal corporation is liable only
| for unskilful, negligent and malicious abuse
| of It's power.
| The general principle is laid down In the
| case Of the city OF Indianapolis VS.. Grattan,
| Indiana reports 329), in which the syllabus
| rs as follows: IAN incorporated city is not
| liable for consequential lEjuries to private
| property resulting from the grading and i'm
| provements OF its streets, If, in making such
| improvements reasonable skill and care be
| taken TO avoid injuries The same princi-
| pie is shown TO nave been uniformly es-
! tablished by decisions of the courts in almost
every state in the Upion. The case of Gov
ernor vs.. Meredith ct. al, a Tenn. Rep,
In New York case OF Kavanagh VS.. the
city OF Brooklyn (see So, Barbour the city
| Of Brooklyn was held not 10 be liable IN
damages for injury or Inconvenience 10 the
| owners OF property upon streets, resulting
| rom Improvements. such as grazing. paw
| ing, laying curb and gutter stones, and side
| walks by authority OF law and IN case
| where 10 negligence or unskillfulness had
| been shown.
| In the case of Goszler VS.. The Corporation
| OF Georgetown q Wheaton, &c., the same
| principie was held by the Supreme Court of
| the United States. The plaintiff Goszler,
| had built his house on Georgetown street,
| the grade Of which rad been established by
| an ordnance of May, 1893. In September,
| 1916, the corporation passed another or1i
| nance, directing the level and graduation OF
| this street 20 be altered so TO cut down the
| street by the plaintif-s house. The ORTIZ
| nance of 1899 had been passed by the George
| town corporation by virtue OF the power
| granted IL by the statute of Maryland OF
| 1885,, "tO make such bylaws and ordinances
| tor the graduation and leveling of the streets,
| lanes and alleys within the jurisdiction OF
| the same town, as they may judge necessary
| for the beI eft thereof" The ordinances OF
| 1893 provided THAT the said level aud graiu-
alton shall be forever thereafter Considered
| as the true graduation of the streets so grad
| uated, and be binding upon this corporation,
| and all their persons whatever, aud be ipr-
| erer hereafter regarded in making in
| provements UPON said streets" 1t was
| claimed by the plaintiff, Gcsz,er, that
| under the law the improvements sho Id
have been made according 10 the gradus-
| ton established in 1893. aud that the corpp-
| ration was estopped by its own contra ct
| made in said ordinance from any alteration
| of the grade of 1893, aud il was held by the
| Supreme Court OF the United States that
| the power to grade the streets was a con-
tinuiDg power; that the ordinance OF the
| corporation was not in the nature OF a COM
| pact, and that the corporation could at any
| time repeal the said ordinance and alter the
| grade therein established. 1t was assumed
| by both parties and by the court that the
! corporation would not have been answer
| able for consequential damages unless the
corporation was bound by the promise made
in the ordinance OF 1899. IL was held "that
the corporation could not abridge its own
1 lot fx,av md ~