The times. [volume] (Richmond, Va.) 1890-1903, 1892-04-08
PAGE AGAINST BELVIN.
REVERSED BY THE SUPREME COURT.
OF stcnrns' Executor Against the
City OF Richmond.


delivered in the supreme court of appeals
yesterday. In the case of Page against Bel
YIN and Others the court reversed the decision
of the Circuit Court of Richmond This WAS
q suit growing out of writ OF error 10 a iudg-
ment of the circuit court rendered on No
yember 10. 1880. The action was trespass by
L. X. Page. of this city. against the defend
ants in error, Preston Belvin and others. who
were members Of the Committee on Streets Of
the City Council. and W. f. Cutshaw. city
engineer aud two contractors for the work.
for al alleged trespass committed by them
on his lot on Grace street IN digging mp the
sidewalk and street contiguous TO his resi-
dence and lowering tho grade OF the street,
and causing him great annoyance and dam
age. The action was brought against the de-
PENDANTS as individuals. not as officers OF the
city government, upon the ground that they
committed the acts complained Of without
being previously authorized by tho City
Council. IN which body the CITY char
ter vested whatever authority there
was TO the end attained. The defendants
conceded that IN strlctness or law theY dld
not have authority 10 do this Work, but they
say they did II ia the usual way streets were
graded and reported their action to the City
Council. where 1t was ratified. They SUD
posed the plan usually adopted was lawful.
The matter was set IN motion by petition
signed by the plaintiff and the other resi-
dents on both sides OF Grace street between
Fifth and Sixth streets addressed 10 the
Committee On Streets. asking 10 have
the cobble-stone cutters taken up and
replaced with granite cutters, the old cutters
being very rough and out of grade. Inc
Committee on Streets, with its clerk and the
City Engineer, went 10 the spOtin response TO
the petition OF the property owners. ana,
after examination, recommended 10 the
Council that the prayer Of the property
holders be granted If approved 10y the ward
Committee and City Engineer subsequently
the sum Of 1915 was appropriated 10 pave
granite cutters on both sides Of Grace from
Fifth TO Sixth street.
Without other authority than this the de-
PENDANTS changed the grade OF the whoie
street and lowered the street nearly three feet
at cost 10 the city Of Sl.69I. 81. instead OF
1915 TO repave the cutters, and damaged tue
plaintiff in the sum OF v2JO. Whlch was eA-
pended necessarily 10 remodel the entrance
TO his house 10 adapt II 10 the changed sraue
of the street.
II appeared in evidence that the defendant.
Kelvin. went 20 see the plaintiff 70 give him
notice about what he and others were ABOUT
TO do in front of his house; but MI age WAS
very busy and postponed any interview on
the subject at that time and promised 10 can
on Mr. Beiyin at his place of business. when
he did. but without meeting Mr.. Bevin until
the work was we'll under way, when II was 100
late t. stop the work, and the bringing Oh The
suit was the result.
IL is claimed by the appellant that the act
of the Council in confirming the action OF the
Street Committee after the Work Ahu Deeh
done was null and void.
Major Page brought suit 70 recover dam
ages of Mr. Preston Belyin and others Tor
damage 70 his property. The circuit court
decided that they could not be held respon-
sibe. and the case was dismissed Inc
HIGHER court reversed Judge Weilford's decl-
sion and holds that the individuals are respon-
sibe for damage to property caused by work
not authorized by the Council. Judge Lacy
delivered the opinion.
sTEARSs AGAINST THE CITY.
Another important decision was rendered
In the case of Stearns executor against the
CITY of Richmond. The action was brought
| for in luries to the plainth properly aOntunR
on Twenty-frs street, caused by the grading
of that thOrOughtare
The first count in the declaration charged
that the city IN grading the street eIcavated
| To a depth which lett the plaint1 land WITH
ont sufficient lateral support. in consequence
! of which 50 much thereof fell into the street
as 10 practically destroy the property
The second count charged that when the
grading was commenced there were upon the
premises two substantial brick tenements,
| the walls whereof were so cracked and dam
| aged. by reason of the giving away OF the soil,
as to necessitate their being taken down.
Other counts charged that the damage was
caused by the careless and unskilliul
manner in which the work was done by the
| city.
There was q verdict for the plaintiff for
| Z 600 damages which the circuit court. on
| the defendants motion, set aside. and alter
wards. jury being waived gave final Judg-
/ ment for the defendant. To this Judgment
the plaintiff applied to the court of appeals
! for writ of error. which was allowed.
The opinion in the case was prepared by
! Judpe evils Judge Hinton cOncurred IN
/ the result but not IN the views expressed IN
| the opinion. The case turned upon the ques-
! ton whether the damages resulting from the
work were what are termed consequential
merely. The Court decided that they wero
not.
Judge Lewis in delivering the opinion SAYS:
I'm the present case there was no dispute rs
| TO the disastrous effect upon the plaintln :
| property by the improvement IN question: IL
! has, in fact. been almost totally DESTROYED.
| By reason Of an excavation Sixty ieet IN
| depth the soil in large quantities has fallen
into the street below. the buildings thereon,
erected at u cost Of several thousand dollars,
| had TO be taken down TO prevent their fall
inc also. and the earth which Tell las
actually been appropriated by the city Tor the
| construction OF another thoroughtare. called
| moreover. that the building nearest the street
was twenty feet from the street line. Can 1t
he doubted then. that the plaintiffs pro
pertv has been taken by the public, II the
| Constitution means anything: II would be a
STRANGE construction of that instrument TO
hold that il does not extend TO such case.
In conclusion the opinion says
We must, therefore, III obedience TO the
statute, set aside all proceedings subsequent
| 10 the verdict and enter judgment on
that for the plaintiff. !. G., for $1,000 and
costs. which in view OF the circumstances IS
! certainly a very moderate recovery.
Another important opinion was the one
rendered in the case of Waddill against
Sebree. which was brought about by an
| anpeal from the Circuit Court OF Henrco
comfy. In which case the circuit court abatsd
nm attachment sued out by the plaintiff. I'd
| mund WAddlll. Jr.. against the estate OF the
defendant. w. +. Sebree. The circuit court
| held that the contract between the parte:
was satisfied by the payment and forfeiture
of 500 earnest money. The court reversed
the decree of the circuit court ard decided
| that the contract was one or sale ana not
an ontiop. and also that an attachment would
lie i'm suit for the specific performance OF
Jndee Lacy delivered the opinion. Judge
Iiuton dissented on the last-naned PROPOSE
ton. ,..:. .u-o 80,
Rnrruss Son & Co. against Trant. From thu
unstings Court of Portsmouth Anlrmed
Indee fauntleroy delivering opinion.
I,-l,olav AGAINST Commonwealth. From