City of Meridian v. Hudson

delivered the opinion of the court.

■ Suit' was filed in the circuit .court- of Lauderdale county by H. P. Hudson, the appellee, against the city of Meridian;" for damages to real property owned by the appellee, caused by the grading and paving of A street, upon which appellee’s property fronts,.from Ninth to Eleventh avenue. A verdict for two hundred dollars was rendered in favor of the appellee, upon which judgment was entered, and from which judgment this appeal is prosecuted.

. The uncontradicted facts in this case show that thirty or forty years before the opening of A street, in front of the.block in which the property of the appellee is situated, an ineffectual attempt was once made to dedicate this part of the street to the city; that at a later period and a short time before the institution of this suit, the appellee and others who claimed to be the owners of the property upon which this part of A street is now located, dedicated it to the city, and that the city accepted same. Ordinances authorizing the opening up and grading of this part of A street were duly passed by the city council. .The testimony of appellant is that the appellee requested the mayor and one of the councilmen, at different times, to open and grade A street from Ninth avenue, in front of the block upon which appellee’s property is situated, after the passage of the above ordinances. It seems that A street had previously been opened to Ninth avenue, which is the northeast boundary of the block in whicJh. the Hudson property is located, and that part of A street opened up runs’ in a southwesterly, direction in front of this property’ The only question to be decided by this court is whether or not the lower court erred in refusing the following instruction asked by the defendant, viz.:

*345“No. -5. The court further charges.the jury for the defendant that if from all the testimony in the case they believe that the plaintiff joined in the making of a «map laying out and dedicating that part of A street opposite his property, and afterwards' persuaded and induced the defendant city to open, grade, and improve said street by personal solicitations to members of the city council, and that the council of said city thereafter and pursuant to such request did open, grade, and improve said street in a reasonable, careful, and prudent manner, under all the facts and circumstances, then the defendant is not liable to plaintiff for any damages' he may have sustained by reason thereof, and the jury ■should find for the defendant”-

—and in giving the following instruction for the plaintiff:

‘No. 3. The court’ charges the jury for the plaintiff in this case that the doctrine of estoppel does not apply to actions of tort, and that in this case the plaintiff cannot be held estopped by reason of any inducements or requests upon the defendant to do the “grading- and cutting in question, if from all the evidence you-‘believe he has suffered damages.”

It is the contention of the appellant that by the dedication of the property by the appellee and others tp the city for the opening up and grading of A street, and that by his requesting the mayor and city councilmen to grade and open up this street, he is-thereby estopped from claiming any damages for the proper grading and opening up of said street. It is to be borne in mind that A street had already been opened up and graded to Ninth avenue,- the northeast boundary of the block upon which the appellee’s property is located and appellee is bound to have known of the grading and condition of A street aid Ninth avenue at their intersection on the corner of this block; and when he requested the city to open up A - street through his block, if he made such request, then lie- knew and expected that said *346street would be .opened up to conform to the proper grade of that part of A street already opened; and by these requests, in connection with his dedication of the land for the opening up of the street, he is estopped from claiming any damages for the proper grading of said street. In this case, it makes no difference whether or not he knew at what grade the street would be made in front of his residence. He is bound to know, and is charged with the knowledge, that the city would properly grade that part > of the street in connection with that part already opened up- and graded, providing, of course, for suitable drainage; and the testimony of appellant in this case shows that this was done. It is further shown that the appellee knew when the work of grading and paving was being done, and made no objection in any way thereto.

It is the contention of the appellee that the case of Robinson v. City of Vicksburg, 99 Miss. 439, 54 So. 858, settles this case against .the appellant. In that case, however, Mulberry street, for a number of years, had been' opened up, and Eobinson joined in a written petition to the municipal authorities only to pave this street. There was nothing whatever in said petition about the street being graded, or the grade thereof being changed. The sole idea of said petition was to have the street paved. The city, however, changed the grade of the street, and in so doing damaged the property of Eobinson.' Eobinson sued for damages and the city claimed that by signing the petition he was estopped from claiming damages. In delivering the opinion of the court, Judge Anderson in part said:

“. . . Or may a waiver be implied by his signing the petition with the knowledge that in paving the street the city might find it necessary to change its grade? We think not. In our judgment, such conduct ought not to operate as an estoppel. A constitutional right may not be so lightly waived. There is nothing whatever in the petition, nor in the conduct of the appellant as dis*347■closed by the record, which evidenced a purpose on his part to waive his constitutional right to claim damages to his property, caused by- raising the grade of the street.”

In the case at bar, however, the testimony introduced by the appellant is to the effect that the appellee requested the mayor and one of the city councilmen to open up and grade this street. In the Vicksburg Case, the attention of Eobinson was neither directly nor indirectly directed to the grading of the street, consequently no estoppel against him could be claimed; but in the instant case the appellee expressly requested the grading of the street. In the Eobinson Case, if any damage had been done to Eobinson caused alone by the paving of the street, certainly he would have been es-topped from claiming damages therefor; and in the ■case at bar, if the jury believe the testimony of the appellant, then the appellee will be estopped from claiming' these damages. In the case of City of Texarkana v. Talbot, 7 Tex. Civ. App. 202, 26 S. W. 451, in passing upon a similar question the court in part says:

“Upon an examination of the evidence contained in the statement of facts, we find that it was proven, without controversy, that, prior to the construction and establishment of the grade upon Maple street, plaintiff, joining with a large number of others owning property abutting upon said street, petitioned the council of the city of Texarkana, in writing, to establish and construct a grade upon Maple street, presenting strong and urgent reasons for the prayer of the petitioners. This was a most important fact in the case, which the trial court appears to have entirely ignored. ... It is not stated in the court’s findings whether the grade was regarded as a proper grade, nor whether the work of constructing the grade (was done skillfully or negligently. Under this state of the findings of fact, we are led to the conclusion that the court below was of the opinion that plaintiff was entitled to recover for the *348damage done Ms property, notwithstanding the grade was a proper one, and its construction skillfully executed. . It may have been the view of the trial court that the petition of the plaintiff to the city council, asking.. for the establishment and construction of the grade, did not affect his right to - recover for injuries incident to and consequential upon the construction of such grade. It would hardly be reasonable to give the law a construction which would authorize one to influence a city council by petition to fix and construct a grade upon a street, and then permit him to recover damages for injuries which are incident to a proper construction of such work. We think it would be more in harmony with good conscience and sound reason to-treat such an act as a consent to the construction of the grade, and a waiver of such damages as are incident to its proper construction. When the plaintiff signed and presented his petition to the city council, praying for the fixing and construction of the grade upon Maple street, he consented, in the meaning of the Constitution, to all such damage as was incident to a proper and skillful construction thereof, and could only recover for injuries resulting from negligence of the city in constructing the work consented to by plaintiff. Absolute right to compensation for the damage, provided by the Constitution, no longer existed after he consented to the work, and his rights must be determined under the common law.”

See, also, Ball v. City of Tacoma, 9 Wash. 592. 38 Pac. 133; Vaile v. City of Independence, 116 Mo. 333, 22 S. W. 695.

It therefore follows that the lower court erred in refusing the above instruction requested by the appellant, and in giving the above instruction given for the appellee.

Reversed and remanded.