The morning call., 1893-12-23
NO CONFISCATON.
Property Damaged Must
Be Paid For.
AN INVALID ORDINANCE.
Supervisors Have Followed a
Wrong Law.
MOST GRAVE CONSEQUENCES.
Important Opinion of City and County
Attorney Cresswell on the
Street Laws.

1t is of the greatest importance to the
property-owners of San Francisco. Should
his views be sustained, and they are pro-
nounced correct by both Mayor Eiiert and
Clerk Russell, who is an expert on street
matters, the most serious results are liable
to enSue.
The opinion declares invalid all ordi.
nances relating to a change of grade
passed by previous boards under the law
of 1885. This affects a vast number of
cases, and il those who obtained no damages
whlcn resulted should now put in claim
the total would reach an enormous sum.
The question then would be who is re-
sponsibe? This would be legal question
for the courts. but the question remains
undisputed under the opinion that the
property-owners would have a claim for
damages. The question of responsibility
would be between the city and the prop
erty affected by the changes of grade.
The opinion was the result of re-
quest Of the Supervisors as to the validity
OF order No. 1877 providing for a change of
grades on Sanchez and Twenty-first
streets. The Superintendent had the
greatest trouble about these changes of
grade and with also those on Liberty
street. There was no question that prop
erty-owners would be damaged by the
prosecution of the work, but under the
order passed there was nothing in the way
of compensating them for their loss.
The opinion which affects so many
changes OF grades, covering long period
OF years, is as follows:
In reply 10 your communication OF November
2l, 1898, inclosing the petitions Of certain
property-owners and placing in question the
changing and establishing grades Oh Sanchez
and TwenIy-frst and Hill streets. submit the
following:
Previous to the adoption by the people of the
pr sent constitution, which went Into effect
July 4, 1879, the common law rule, "That
persons appointed or authorized by law 10
make or improve highway are not answerabIe
IN consequential damages, If they act within
their jurisdiction and with care and skill" was
recognized as the established law of this State.
Our Supreme Court In Redrdon vs. San Fran
cisco, 90 Cal. In passing upon this question
SAID: I'VE are OF the opinion that the law Is
well settled, that when a municipal corpora
tion, like The defendant Is engaged In doing
such work as Is set forth in the complaint. in q
lawful manner and without nolice, no liability
for damages attaches 10 1t, unless such liability
Is imposed by some statute law or organic law
This may be accepted as a fair statement OF
the law GU the subject as II is universally pro-
claimed by The courts OF both England and
America.
Upon the adoption OF the present constitu-
tion, however, clause was incorporated in
that instrument, which is found in article /,
r.,
Private property shall not be taken or dam
aged Tor public use without just compensation
having been iirst made To or paid into court for
the owner"
This provision has the direct effect of re-
versing the rule just stated, ana OF substituting
therefor the Iule that ''priyate property cannot
De damaged Ior pubic use without just COM
pensalion having been first made or paid as
prescribed"
Again, the Supreme Court in Reardon vs. San
Francisco (supral. Ia passing for the first time
n - nd -
effect upon the C ommoD law rule, quoting the
New York Supreme Court In West VS.. Brock
port, 16 n. Y. 161, said:
But 1t is now claimed and so the court in.
structed the jury, that this rule had been changed
by provision OF the constitution OF 1877 con-
talned in the last clause of paragraph l. section
), of the bill of rights, whic reads as follows:
Private property shall not be taSen or damaged
Tor public purposes without Just and adequate
compensation being first paid. 1t is not denied
by counsel for plaintiff in error that una er this
provision OF the constitution for any direct ana
immediate damage done to private property, such
as its Invasion or the spoliaton thereof, the city
would be liable for damages and would be COM
stltution provided; but he insists that It
was not the intention or purpose OF
4e ehaRSs iT%srs tSs o, nns to
and long recognized by the courts that in i'm
proving the streets by raising or lowering the
grade thereof the city would not be liable to re-
sDond to lot-owners bounding thereon for any
consequential damages resulting therefrom. The
duty deyolves upon this court then TO construe
for the first time this clause in the bill of rights
In previous constitutions the words varied from
the present. But under the constitution of 1877
further protection is sought to be given to the
property OF the citizen and now reads lit shall not
De TAKEN or damaged Tor public use without just
whether the damag shall be Immediate direct or
consequential Any damage TO property for pub
be- and Will no doubt often occur. that the conse E.
quential damage may impose more serious loss
upon the owner than temporary spola.ion or
invasion of the property
And In the language OF our own court In the
same case tt is said:
We are of opinion that the right assured to the
restricted to the case where he is entitled to re-
cover as for . tort at common law. II he is con-
is done carefully and with skill or not he is still
entitled to compensation for such damage under
this provision.
Under this provision of the constitution
therefore. and the broad interpretations which
our own and foreign courts have placed upon
II, II Is evident that the municipality must make
as before the adoption OF the present constitu-
ton. Tor the compensation OF private owners
whose property Is taken for public use, but also
for any damage direct or CONSEQUENTIAL which
they may suffer by reason of such work.
Order No. 1877, the validity OF which Is now
IN question, was passed by your honorable
board and went into effect in May, 1888, and
IN evident conformity with the street law of
1855 (SJat. 1885, y. 147). In that act no pro-
vision was made for the compensation OF abut.
ting owners OF property damaged by the grad
lanes. etc.. mentioned In the act.
A review OF the history OF the street law OF
this State applicable 10 This city aud county up
TO and including the passage of the act of 1856.
under Which SAID order No. 1877 was passed.
reveals the fact that the act of 1872 (Slat.
1871-72. p. S04) was rendered imperative by
section 10 of article ii OF the constitution
OF 1879 and that 1t was further repealed by
Implication by the law Of 1888 (Stat. 1888, D.
32l On this bead our Supreme Court in
Ibomason VS.. AshwOrth, 73 Cal. 73, says:
1t follows from the above first, that the act of
1917 was entirely done away with under the con.
stitutfon; second. that the act Of 1883 was con-
stitutionai when passed, and repealed all portions
OF the act OF 1872 in conflict with it, third, that
the act OF 1885 is constitutional act under the
constitution as amended: that the act Of 1885 re-
pcaed the act OF 1888 and has been and now is in
force since its passage on the 18th day OF March,
1885
After the passage of the act OF 1885, there
fore the existing street law of the State appli-
cable to this city and county was found in the
act OF 1885 and In those portions OF the act of
1868 (Slat. 1867-6S, D. 1863 which were not In
conflict with IL and the constitution Of 1879.
In the street law OF 1868 provision has been
made nder section 2 thereof for its hearing
adjustment and determination of the aims Of
property.owners for damages resulting from
the change OF grade, and in said act IL is pro-
vided:
The grade OF any street avenue portion of
any street or avenue, the grade of which has been
liked by ordinance Sin all not DC altered chanQ ed
except upon adjustment of the benefits and