
    Cincinnati v. Whetstone.
    
      Street improvement — Interest on damages.
    
    Where a city, in making a street improvement, changes the established grade of the street, and damages are thereby sustained by the owner of an abutting lot, who, in good faith, has erected buildings thereon with a view to the established grade, and the city, before commencing and after the completion of the improvement, fails to assess the damages thus sustained, such owner, in an aclion against the city to recover compensation for the injury to his property by reason of the improvement, is entitled to interest on the amount of compensation awarded, from and after the actual change of the established grade, and it is not error in the court to so charge the jury.
    (Decided March 25, 1890.)
    Error to the Circuit Court of Hamilton county.
    The original action was commenced in the Court of Com mon Fleas of Hamilton, county, by the defendants in error, Marion G. Whetstone and John L. Whetstone, as trustees under the will of Richard A. Whetstone, deceased, against the city of Cincinnati. The plaintiffs in their petition alleged, that Richard A. Whetstone was, in his lifetime, seised of a perpetual leasehold estate in a tract of land on the north side of Eighth street, in the city of Cincinnati, with a frontage of 104 feet on that street, and extending back with the same width in rear as in front, to a depth of 56 feet; and that he was also seised in fee simple of a lot of land immediately adjoining the leasehold estate upon the west, and being 13£ feet in front upon Eighth street, and running back the same width as in front, 56 feet. Richard A. Whetstone, by his last will and testament; it is alleged, devised the said premises to the plaintiffs, to be held by the same tenure by which he had held the premises, but in trust for divers purposes, in the will specified and set forth.
    The plaintiffs further alleged, that in the years 1872 and 1873, and for many years previously, Eighth street in front of said premises was a public highway of the city of Cincinnati, in the charge and lawful custody of the municipal authorities of said city, the grade of which had long before that time been established, and said street had been graded, and paved to said grade, and in use for many years as such highway.
    The plaintiffs further alleged, that before the year 1872, there had been erected, and there still continued to be on the premises, valuable and permanént improvements, con-' sisting of a brick warehouse and paint shop, frame stable and brick cooper shop, all connected with and adjoining a linseed oil mill, and used in the business of making and selling linseed oil, which was carried on in and upon said premises by tenants of the plaintiffs, who paid rental for the use thereof, and which improvements were erected with reference to said grade, and entirely conformable thereto.
    And it was further averred by the plaintiffs, that in the years 1872 and 1873, disregarding the rights of the plaintiffs, and against their protest and written notice and claim, the city of Cincinnati changed said established grade, and reconstructed said street at a grade much higher than before, and so as to fill and elevate said street in front of said premises at the west end thereof about seven feet, and at the east end thereof about ten feet, by piling large quantities of earth thereon, and was proceeding to fill the same directly against the said buildings of the plaintiffs, and would have crashed and destroyed the same, to the loss of the plaintiffs of many thousand dollars, but for the active efforts and expenditures of the plaintiffs for their own protection, who, between March 15, 1873, and May 31, 1873, expended in the construction-of necessary retaining walls to save said buildings from o'Vérthrow and destruction, the sum of $1,008.22.
    The plaintiffs further alleged, that by the reconstruction and change of grade of said" street, great damage had been done to their buildings; that the first story, which was before upon the level of, and conveniently accessible to the Said street, had been converted into a basement or cellar,.largely below the level of the street, and the cellar into a sub-cellar, and thereby they had been subjected to. a heavy loss, viz.: - in the sum of many thousand dollars, in the deterioration and lessening of the value of the said buildings and improvements, in addition to said money expenditure — in all, to the damage of the plaintiffs in the sum of ten thousand dollars, for which, with interest from August 1, 1873, 'they asked judgment. 1
    The answer to the petition was a general denial.
    -The court, in its general charge to the jury, among other instructions gave the following:
    “Your inquiry, according to the damages of this case;1-is to relate to the date of the change of grade in 1872 and -1873. If the plaintiffs sustained any injury by reason of the change of grade, it occurred at that time, and in determining the measure of damages, by the difference between the valúe of the improvements before the change of grade, and the value of the improvements after the change, you are to con'si'der the values of that time. And, if you find for- the plaintiffs in that regard, and having assessed a reasonable and just compensation therefor, then, you will consider the question of interest on the amount of damages found for the plaintiffs, and on that question I will instruct you, that if you find the plaintiffs are entitled to damages, then that they should be allowed interest thereon, from the date of the injury to their improvements up to the first day of this term, to wit: the 7th day of January, 1884. But, in order to save the question as to the right of the plaintiff to recover interest, I will request of you to separately find the amount of compensatory damages and the amount of interest.” ....
    
      “ It is for you gentlemen to say, taking into consideration all the testimony on the subject, whether, under the circumstances, a retaining wall was reasonably necessary to protect the plaintiff’s buildings and improvements, and if a wall was necessary, then whether the wall which was constructed was such a retaining wall as was reasonably necessary. ■ And if you find that the wall was reasonably necessary, and the wall constructed there was a reasonable wall for the purpose, then the plaintiffs should recover for the fair and reasonable cost of such wall. All these questions are questions appealing directly to your sound judgment and discretion in view of the testimony, and if on this question as to a retaining wall, you find for the plaintiffs, then they will be entitled to recover interest on the fair and reasonable cost of the retaining wall from the time of its completion up to the first day of this term, to wit: the 7th day of January, 1884.”
    . An exception to the foregoing portion of the charge was reserved and noted.
    The jury, on the issue joined, found for the plaintiffs, and assessed their damages at $4,897.00. Under order of the court, the jury found separately the amount of compensatory damages, and the amount of interest, as follows:
    For injury to buildings and improvements, $2,250 00
    Amount of interest allowed on the above, . 1,485 00
    Amount for retaining wall, 700 00
    Amount of interest allowed on the above,. 462 00
    $4,897 00
    
      Judgment was rendered for the amount of the verdict.
    A motion for a new trial was filed, overruled, and exception taken. A petition in error was then filed in the circuit court, and on hearing, that court affirmed the judgment of the court of common pleas. This proceeding in error is prosecuted to reverse the judgment of the circuit court, and the judgment of the court of common pleas.
    
      Goppock, Cox Gallagher, Horstman, Hadden, Foraker & Galvin, for plaintiff in error.
    We maintain, that the question of interest on the amount plaintiffs were found to be damaged, should have been left to the discretion of the jury, and it was their province alone to determine whether or not interest should have been allowed. Lawrence R. R. v. Cobb, 35 Ohio St. 94; Hogg v. Z. & C. Mfg. Co., 5 Ohio 410; Chicago v. Allcock, 86 Ill. 384; 3 Sunderland on Damages, 383; Walrath v. Redfield, 18 N. Y. 457; Garrett v. Ry. Co., 36 Ia. 124; Ry. Co. v. Johnston, 74 Ill. 83; Insurance Co. v. Penn. Ry. Co., 11 Hun, 182; McIlvain v. Wilson, 12 N. H. 478; Green v. Garcia, 3 La. Ann. 702; Orr v. Mayor, 64 Barb. 106; Willing v. Consequar, Pet. C. C. Rep. 172; Gilpin v. Consequar, Id. 86; Beals v. Guernsey, 8 J. R. 444; West v. Weyer, 46 Ohio St. 66.
    
      Harmon, Colston, Goldsmith $ Hoadly, for defendants in error.
    In this case we claim that interest is one of the elements of compensation that must be tallen into the computation. Railroad Co. v. Cobb, 35 Ohio St. 94; Crawford v. Delaware, 7 Ohio St. 469; Railway v. Cumminsville, 14 Ohio St. 523; Railway Co. v. Lawrence, 38 Ohio St. 41; Railway Co. v. Ball, 5 Ohio St. 575; Railway Co. v. Campbell, 4 Ohio St. 585; Railway Co. v. Gardner, 45 Ohio St. 322; Railway Co. v. Koblentz, 2 Ohio St. 334; Railway Company v. Miller, 125 Mass. 1; Railway Co. v. Burson, 61 Pa. St. 369.
   Dickman, J.

Among the errors assigned by the city, the only one relied upon in argument is the alleged error of the court in charging the jury that thej" should, allow interest on the damages to which they might find the plaintiffs entitled. It is contended that in actions sounding in damages, the jury may allow interest or not, as they shall determine ; that if interest is awarded it is a part of the damages, and being an element of damages, its allowance is a matter of discretion for the jury. It is conceded that if the jury had, of their own motion, given interest by way of damages, the verdict would not have been unauthorized; but it is urged that while interest may be allowed in the discretion of the jury, it was error to instruct them to allow it as a matter of law. If the defendants in error were, as a matter of right, entitled to interest on the amount of compensation found due them for injury to buildings and improvements, and for the construction of necessary retaining walls, they should not be prejudiced by the court’s instructing the jury that such amount should carry interest.

The question therefore arises whether the defendants in error, as owners of abutting property, and entitled to compensation for the injury caused by the change of the established grade of the street, are also entitled, as a matter of right, to interest on the amount of compensation found due from the date of the injury, and during the time the compensation was withheld.

This is not an action ex delicto, in which damages are claimed for trespass or injury to real property, and is not to. be governed, therefore, by the decisions in actions of tort, cited in argument, and which hold that unless the jury in their discretion give interest under the name of damages, it is not in accordance with legal principles to allow it on unliquidated claims, sounding in damages. Those decisions, it is said in 2 Sedgwick on Damages, 383, note e, are few in number, and cannot be considered of more than local authority, and are at variance with the general rule which now prevails. In Parrot v. The Knickerbocker Ice Co., 46 N. Y. 361, which was an action brought to recover damages caused by a collision between a sailing vessel and a steamer, the court said that in cases of trover, replevin and trespass, interest on the value of propertjr unlawfully taken, or converted, is allowable by way of damages, for the purpose of complete indemnity of the party injured; and that it is difficult to see why, on the same principle, interest on the value of property lost or destroyed, by the wrongful or negligent act of another, may not be included in the damages. Indeed, it is evident from the general course of decision, that where one has lost his property, or the use of it, directly through the act of the defendant, the principle of adequate compensation will give interest as a necessary incident.

In making the public improvement of Eighth street, the municipality was in the exercise of a legitimate corporate power. The council had the care, supervision and control of all public highways and streets within the city limits, with the duty imposed of keeping the same .open and in repair, and with authority to ■ grade, change established grades, reconstruct streets, and make pavements and other improvements to facilitate travel and transportation. But, while the city had the right to improve the street by changing the established grade, there was a co-existing right of the owners of abutting property, who had made improvements on their lots in reference to such established grades. It is well settled by the decisions in -Ohio, that if the grade of a street has been established by the corporation, and the owner of a lot in good faith erects buildings thereon, with a view to the established grade, and the corporation after-wards, for the convenience of the public, alters the grade in such a manner as to substantially and materially injure the buildings, and cause the avenue to the place of business of the lot owner, and his use of the street as an incident to his permanent structures, to be blocked up and taken from him, it is as positive and substantial aii injury to private property, and as direct an invasion of private right incident to a lot, as if the erections upon the lot were taken for public use, and it comes manifestly within the spirit of the constitution, which requires compensation for property taken for public use. The easement in the street appendant to the lot is held to be as much property as the lot itself. And the decisions in Ohio in this regard, although different from those which prevail in some other states, are said by Chief Justice Gibson, in O'Connor v. Pittsburgh, 18 Pa. St. 189, to be “founded in natural justice.” See Crawford v. Delaware, 7 Ohio St. 459; Street Railway v. Cumminsville, 14 Ohio St. 523; Youngstown v. Moore, 30 Ohio St. 133; Railway Co. v. Lawrence, 38 Ohio St. 41.

The city, by the improvement of the street and the alteration of the established grade, virtually appropriated property rights of the defendants in error, the benefit and enjoyment of which as they then existed, depended upon the continuance of the grade as then established. “Where compensation is to be made for property, and delay has occurred in obtaining payment, interest is a recognized ele•ment in assessing the value.” White, J., in Gest v. Cincinnati, 26 Ohio St. 280. For damage to the abutting property, ■by reason of the street improvement, the property owners were entitled to full compensation, which should have been promptly made; and if there was not a prompt reparation, it was proper, as an additional means of making the owners whole, to instruct the jury to award interest on the eompensation while withheld- The injury for which full compensation was due, is referable to the time of the change of the grade in 1872 and 1873; and the interest in controversy represents what the property owners might have received, for the use of the compensation allowed, had the same been paid without delay.

In Sutherland on Damages, it is said: “ It being an accepted principle that land taken for public use should be valued, and damages ascertained, as of the date of the taking, payment is then legally due, unless a statute designate some other time; and on general principles, interest should be given from the time when the principal should be paid; or, in other words, from the time the land owner was éntitled to compensation.” The principle, that compensation for property taken by the public, shall either be paid at the time it is taken, or paid with interest, or with a fair allowance for the use of the property during the time it is withheld, was declared by the court in Railway Co. v. Koblentz, 21 Ohio St. 334, in which, at the trial of the cause in the- common pleas, the court instructed the jury to allow interest on the compensation, from the time the company took possession of the defendant’s land.

The Delaware, Lackawanna & Western Railroad Co. v. Burson, 61 Pa. St. 369, was a case in which proceedings were commenced in the court of common pleas, for the assessment of damages for injury done by the railroad company, in locating and constructing a railroad through the land of Deborah Burson. Thompson, C. J., in delivering the opinion of the court said: “ Nor was there error in charging the jury to allow interest. If the plaintiff was entitled to compensation by reason of her property being taken at a particular time, she was certainly entitled to interest as a compensation for its wrongful detention. The company as well as the plaintiff could have had the damages assessed as soon as they pleased after locating the road, and it was no reason for withholding compensation that its amount was unknown or unascertained. As the company was the party to pay, it ought to have had the amount ascertained, and paid it; failing to do so, it has no right to complain at having to meet an incident of the delay in the shape of interest.”

In Parks v. Boston, 15 Pick. 198, the jury, in a highway case, were instructed by the judge, that the complainant was entitled to recover the value of the land at the time when it was taken, with interest from that time, subject to a reasonable deduction if he were consequentially benefited by the widening of the street, or with additional damages if he were consequential^ damnified by the taking of a part of his land and thereby injuring the residue. “It is not,” declared Chief Justice Shaw, “strictly speaking an action for damages ; but rather a valuation or appraisement of an incumbrance created on the plaintiff’s estate, for the use of the public. It is the purchase of a public easement, the consideration for which is settled by such appraisement only because the parties are unable to agree upon it. The true rule would be, as in the case of other purchases, that the price is due and ought to be paid, at the moment the purchase is made, when credit is not specially agreed on. And if a piepowder court could be called on the instant and on the spot, the true rule of justice for the public would be, to pay the compensation with one hand, whilst they appty the axe with the other; and this rule is departed from only because some time is necessary, by the forms of law, to conduct the inquiry; 'and this delay must be compensated by interest.”

In making street improvements, the statute contemplates that there shall be no unnecessary delay in compensating owners for damages to abutting property. By section 2304, of the Revised Statutes, when it is deemed necessary by a city to make a public improvement, twenty days’ written notice of the resolution to make the improvement must be served upon the owners of the abutting property; and by section 2315, any such owner claiming that he will sustain damages by reason of the improvement, must within two weeks after service of such notice, file a claim in writing, setting forth the amount of damages claimed. By section 2316, it is provided that, at the expiration of the time limited for filing claims for damages, the council shall determine whether it will proceed with the proposed improvement or not, and whether the claims for damages shall be. judicially inquired into before commencing, or after the completion of the proposed improvement. Proceedings for the assessment of damages before commencing the improvement are prescribed by the statute. And by section 2321, in all cases where the council determines to assess the damages after the completion of any improvement, it is required that within ten days after the completion of such improvement written application shall be made to the court of common pleas, or probate court of the county, to assess the amount of damages in each particular case.

The defendants in error, and other property owners, within the time required by law, filed their claims for damages. On August 29, 1873, the city passed an ordinance to assess a special tax on real estate bounding on Eighth street, to pay the cost and expense of the improvement, but, the record shows no assessment of damages sustained by the owners of abutting lots by reason of the improvement, and there was, in effect, a taking of property for public use without compensation. Had the damages been assessed before commencing the improvement, the city might have paid the amount assessed, and no claim for interest would then have arisen. Or, if there had been an assessment of the damages within ten days after the completion of the improvement, there would have been a legal.obligation on the part of the city to take steps for the prompt payment of the compensation awarded, and upon failure to do so, the property owners would have been entitled to interest on the compensation as long as it was withheld. In the case at bar, the injury to the defendants in error resulted from the change of the established grade of Eighth street, with a view to which grade they had erected the buildings on the abutting lots. Their damages were properly measured by the condition of their property immediately after the change in the grade of the street, and the long neglect, which is conceded, to estimate and pay those damages, should be compensated by interest.

To prevent their buildings from being crushed and destroyed by the fill of earth made in the street, in front of the'premises, to a height of eight feet above the former curb of the street, the defendants in error found it necessary to construct a retaining wall. It was proper, we think, to instruct the jury to allow interest on the reasonable cost of such wall, from the time of its completion.

Judgment affirmed.  