Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1880-04-09
SYLLABUS.

oAAhNt'Ns
/. II a municipal corporation in
changing the grade, by raising or de-
pressing ITS streets, damages the private
property ui citizen, without, under the
law OF tue State, acquiring the rights to
do 80 and paying just compensation
therefor, private property being protect.
cd under Section 9 OF the Bill oi Rights
that declares private property shall
not be taken or damdg'd for public use
without Just compensation such
corporation Is liable IN an action on the
cause for such damage
=. The first clause of Section ot the
Bill Of Rights or proprio rigorc protects
the private property OF tho citizen iron
damage Tor public usc without Just COM
peusation.
The following is portion OF the opln.
ion Of u majority OF the Court delivered
by Johnson, j.:
Hard IA it seems, the sweeping cur
rent OF both English and American
decision, wholly unbroken except by
the Supreme Court OF Ohio, is, that at
common Law, a municipal corporation is
not liable Tor consequential damages
arising from the change in grade OF a
street to one where land is not taken,
although his Improvement has been
made in his lot in conformity to the
iormcr grade. That the municipal cor
poratiun, rs trustee for the public, has
the night to change the grade OF the
street whenever IN It's opinion the pub
lic good requires It, and II the owners OF
adjoining property are injured by rails.
ing or depressing the streets, no action
lies against the corporation. Ii is dam
nam dbsy,r Bjtlrid. tits unnecessary 10
cite the authorities ON this proposition.
For q collection of many OF them SEQ
Cooley Con, Lin. ji2 and notes.
Cases have sometimes arisen IN which
IL was nice question whether the IN
jury done to the property was not OF
such a character as To constitute taking
thereof.
In the cases OF Pumpelly vs.. Green
BAY Company, lS Wall $50, and Eaton
vs. L. X Co, 81 y. III, 5Oi, the plain
tids' lands were flooded in such way
as to make them worthless to the own
ers, the injury being permanent, and
the courts held in these case the lands
were ,gt1i.
Many cases have arisen where, under
the common Law, II was held that muni-
Cipal corporations were liable Tor throw
ing surface water on adjoining lots
while grading their streets. See a review
Of the case on this subject in GllllsOn,
Trustee, vs. City of Charleston, mira.
But there is a large class Of cases like
the case before US, where II has been
uniformly held at common law that the
plaintiff has no right OF action. Judges
have frequently regretted that the Law
was SO laid down, aud have pointed out
the remedy for the injustice, but under
the common law were themselves pow
erlesS to prevent it.
Parker, &. J., in Calender vs.. Marsh,
| Pick. 4S3, said: Gases apparently
hari will occur, the present Is such q
Que. The plaintiffs house has been
standing for twenty years, and he has
reason 10 expect that in any cOutem.
plated improvement in the streets Als
liability 10 expense would have been at
tended to by the city authorities
II tho reducing or raising the streets,
which have been laid out iOr a definite
number oi years, and on which houses
have been erected, should be made
matter Of adjudication like that of alter
iug, widening or turning a street, sub
iect to the same provision for damages,
the mischief would be cured ioy al
though. theoretically, all this may be
considered as determined When the
street is originally laid out, yet practi-
cally there may be cases where this Just
provision has been overlooked.
That it might be proper for the Legisla-
ture by some general act, to provide
that losses Of the kind complained OF in
this suit should be compensated by the
town or city within which improve
ments may be made for the public
good, or by the owners OF land,
which may be particularly benefited,
ls not for us TO deny; but without such
legislative provision, we have no al.
thority on the subject, it being clear
that by the common Law. a. by our own