Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1876-03-17

Legislature upon the corporation Tor the
public benefit, although an individual who
executes such an Improvement upon his
own lard for his private benefit might
strictly be liable for such consequential in
jury. (Sution V. Clark, 6 Taunt. 90. Boul-
ton y Crowther. B. L c. 693. Mersey
Dock Gases. IL II. # Lords, 7l3. Smith
Y. Washington. 20 Howard, 1876. Rad
cliff Y. Brooklyn. a Comstnck, 1876. Callen-
der V. Marsh, Pick. AIS O'Connor Y.
Pittsburgh, is Pa. ST. Isl Eoi!i>ter V.
Union Co. Conn. 43o R,yaolds Y.
Shreveport. l3 La. An. Acc. Murphy :.
Chicago 90 ILL., 279 Remarks of court l..
Richardson V. Vt. Cen. r. r. Co. IS Vi.
474) This doctrine is based upon the
theory that the act is done in the discharge
of duty which is imposed by the supreme
power of the State upon the municipal
corporation and is care for the public bene-
tit and not for private emolument. 1t is
absolutely necessary for the public accom-
mediation that streets should be raised and
lowered, streets cannot be opened and
kept in repair, or made safe or convenient
for public use, without being made level,
or as nearly so as the nature of the ground
will permit Hills must be cut down, and
hollows filed up, or. in other words. the
road must be graded or reduced to a
in the proper defniti n of the verb to
grade. Ii the duty imposed on the cor
poration requires this to be done, the pow
er must be co-extensiye with the duty"
(Smith Y. Washington. 20 How. li5 This
work, especially in q city where population
Is crowded and land is valuable, will cause
some damage to adjoining proprietors, and
intiict hardships upon individuals. Such
damage, when it has not been caused I'M
necessarily, is "damnum abSque iVurid,"
from the tact that the work which causes
the damage is for the public benefit and
private interests must yield to public ac-
commodatIon. One cannot build his house
at tho top of hill in the midst of city |
and require the grade Of the street to con- |
form to his convenience at the expense of /
the public" Smith :. Washington, c.ted |
supra J
1t is not intended that this principle |
should be considered as applicable to the |
acts OF private corporations who are au-
thorized by the Legislature to construct |
works OF "a public character. such as canals |
or railroads, for although such CORPORA
tons ore empowered to take land upon the |
ground that the taking is for the public |
use. and although the works are TO be used |
by the public, yet they are constructed !
previously Tor the benefit and emolument of |
the private corporations who have them in
charge, and who are not public agents
(HOoker '. n II & n. Co Is Conn. 3l2) /
In the application Of these principles t.
the present case. II is to be observed that
It has been found that street Of fifty feet
in width was fit and proper width for
the public necessities at the place where
the street was constructed that the grade
was proper grade, and that owing TO
the uneyenness of the land all the soil
which was taken from the cuts was neces-
sarily used to I'll the hollows The city
was not therefore using ar unnecessary or
unreasonable quantity of land or excayat-
ing too much earth
But il was urged with great force. that
the defendants were not constructing tho |
street with reasonable care in this that
they were cutting the land at the extreme
limits OF the street perpendlcularly the IN
eyitable effect OF which method OF cOnstruc-
ton Is 10 cause the adjoining land to cave
INTO the street. and TO subject the owner to
expense and damage that If an individual
OF private corporation excavates in such q
manner that the adjacent land IS deprived
OF the lateral support of the soil, and of ad-
equate protection, such private person or
corporation inhicts thereby an actionable
injury upon the adjoining proprietor, and
that ii the city desired TO use their entire
nifty iset OF land where said use caused an
injury to the complainant, they should pre-
vent the injury by building at their own
eIpence retaining wall, and the neglect TO
provide protection is want Of reasonable
care
W hike all the decisions admit the doc
trine that q public work must be construct
ed with reasonable care, the question of
the exten. of authority which municipal
corporation can exercise in respect to the
grade OF streets whereby a conseq uential
damage IS caused - adjoining land, has
been ireq uently before the courts The
strong weight OF authority in this country
Is to the effect that such a corporation IS
authorized To grade and change the grade
OF streets ir1A4 tine to time, when it is
necessary 50 10 do, without protecting the
earth or enbankments of the adjoining pro-
pretors, who are often subjected 10 expense
IN adapting their land to the grade. and
IN protecting their property from the con-
soquential damage which Is incident to the
lowering OF the street. The injury which
IS done TO adjoining proprietors most fire.
quently results IRON the changes Of grade
which become necessary as a city increases
IN population and business, and the needs
OF the public become more urgent, but not
untreq uentlY results from the origina!
grade upon which the street is constructed
Necessary grades and changes OF grade are
constantly being made in our cities. under
the power t. construct and repair streets.
with no protection OF the adjoining soil
By the municipal authorities, and such ex-
ercse OF authority has been. with some ez-
ceptons, sustained by the courts Of the
different States The justification has been
upon the principle which has already been
stated, VIZ, that public officer IS justified
in INJECTING conseq uential damage in the
necessary prosecution Of public work
imposed by the Legislature upon a munich
pal corporation and prosecuted for the pub
lie benefit. The leading authorities have a.
ready been cited.
Ii may be said that nearly ali oil the de-
cisiOus which have been quoted, refer to the
or alteration OF the grade OF
street But, if there is no duty upon a city
y protect the landowners against the cOnse-
queaces OF a new excavation which Is made
alter the street has been constructed, and
after 1t has been long used it is difficult to
see why another standard or rule should be
imposed. when the street is first made pass
able for the public and i to be brought to
proper level
Although am impressed with the seem
ing Injustice and hardship Of method of t
constructing and repairing streets. which
throws upon the individual proprietor, If he
has not been compensated for this conse-
4uental mi airy, a burden which would be J
Jnerous for the corporation to bear, am
constrained by the decision of court, whose
opinions are justly entitled to great weight.
to hold that a municipal corporation can
properly construct and repair streets in
this manner
1t follows that the defendants were con
strncting this street with the ordinary care
which the law demands.
Let the bill be dismissed without costs
A. '. Spaulding and E. }. Phelps for
plaintiff r II Start and Z. f Wales for {
defendants