Daily Republican., 1886-10-04
LOWERING A GRADE.

Prsssnaed 60 City Council on Lowe,
Ing tho Grade of lowering Avenue I
the b. g. .. Railroad.
The following 10 the full text of th
opinion Of Cfty Solicitor Turner on
matter Of vital importspce to the tai
payers Of this CITY:
WILMINGTON, DEL, Sept. 80, 1885,
TO THE PRECEDENT AND MEMBERS O.
| CITY CoUNCIL-GENTLEMEN:
| Atyour last regular meeting, on the 90,
inst, there was . resolution passed b,
your honorable body instructing th,
Olty Solicitor to present to City Council
AZ its next regular meeting, his opinion
% TO the liability Of the city for chan q
ing the grade OF certain streets, and q,
70 whether the city or the Baltimore
and Philadelphia Railroad Com PAM
VIII nave to bear the costs of MAKING
the overhead crossings required by ths
proposed change of grade:
This resolution has reference to a
proposed lowering of grades Of Lover.
ing avenue and adjacent streets, which
are now crossed BY the Baltimore and
Philadelphia Railroad Company q. 0,
near grade. Such lowering or chan ~
OF grades OF said streets being de 81 gned
to secure passage under the tracks OF
the said company, and I am asked in
effect what, in case of the lower.
ing of said grade, would be the liability
OF tae said city to the Baltimore and
Fhiladelphia Railroad Company, and
as well the adjoining property owners
on the line Of raid streets.
Section 81 Of the organic law of the
city. among the other powers, confers
asct rtain and az the boundar;es -
streets, SQUARES. lanes and aiisvs 90 y, "
repair and amend the same and 70 ~, ~
vide for the pavin1 tberaof " .sTo w si,au h.U
extend, or widen any street. sonars
lane or alley. or omen or Iav ont na%
ones, subject to the provisions in that
behalf hereinafter contained; to repu-
late and fix the ascents and descents of
all streets, lanes and alleys; n
and generally TO prescribe and regu late
the use OF the high ways, streets SO uares,
lanes and alleys of the city, and to have
and exercise control over the same, sub
iect to the provisions in that behalf
Hereinafter contained, and to the gen.
eral supervision and control of the Gen.
eral Assembly.
1t 10 my opiL ion that under the now
ers conferred as above, there exists the
power to lower the grades of the streets
aforesaid without any liability upon
the part of the City to the Railroad
Company for the cost of overhead cross.
ings, or to adjoining property owners
for consequential damage to their pro
perties. The mere facts that Council
has granted permission to the Railroad
Company, ct or near grade, to cress anv
highway or street, cannot operate To
change or burden the City with liability
TO such Railroad Company In case .he
City should at any time In Its discretion
seek for public convenience and safety
to alter, change, lower, or amend such
grade.
The CITY of WILMINGTON as a Mimic,
pal Corporation. ia moi liahle for the
cost of any overhead railroad crossiros
nor for abutments IN an nnort the 40 -
which NAV become nacsssarv hu ~
lowering or changing the Grades ~ anu
streets over which the tracks NJ a rai,
road comnanv mass or cr naar ~
grade. 'e
As to its por-liab,l;tv IN ad;o,n;,,
propertv O ogners. the law is .ta,sd rhss
,Jndoe DilIonl ne foi1ovs. ssfn ~
nection with the nrincinle stbat ,hasa =.
DO implied liability ror doing an aos
which Ia Authorized or di,ectaJ hH
valid ststute.' NAV he poticed the
mower of mnnicinsl cornorat;on. ~,
grade and tn cI,anoe the astoh ohI;shaS
GRADE or level a ,be;r strests thnnos,
The exercisa Of tha nove, no. he 50
rious To the adioin,nO nronsytv ownarS -
The pnblic nature nf straats tho nsas
to which they may lawfully be put, the
authority Of the Legislature over them;
the nature of the rights of the adjacent
proprietors, of the municipality, and
of the public with respect thereto and
OF the delegated authority of munich
pal bodies or officers to improve and
graduate them sare topics which have
been considered in a former cbaper
kChsp. XVIII on streete). In view
of the nature of streets, and of that con-
troi over them which of right belonas
to the State, snd of the nature of the
ownership OF lots bounded thereon,
which implies subjecrion, II not con.
sent, to the exercise and determination
of the public will respecting what
grades or changes in the grades thereof
shall from time to time be found neces.
sary, and what other improve M Is
thereon or therein (within the legiti.
mate purposes of streets) shall he found
it results, we think, that
property owner are not en-
titled Of legal right, without statutory
aid, to compensation for damages
which result as an incident or conse-
quence of the exercise of this power by
the State or the municipality by dele
CATION from the State.
"Accordiprly the courts nv numerons
decisions in most of the States have
settled the doctrine that municinal cor.
porations acting under autborirv CON.
feIrtI by the Lepislature to make and
rena,r. or to grade. laveI or imnrons
streets. if they keen witb;n the in i,s
of the streets' and do NOT trasnass mon
or invade nrivate nronertv ard 90.
- PHoR|ASy, "iu 0Aoi