
    J. A. and C. E. BENNETT v. WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY.
    (Filed 8 December, 1915.)
    1. Municipal Corporations — Discretionary Powers — Grading Streets — Railroads — Constitutional Law — Damages.
    The rule excluding liability of a municipality to an abutting property owner for damages caused to his property by the grading of a street, done within the exercise of its discretionary powers, has no application where the work is done by a railroad company to facilitate its own business, for, though authorized by the city, the railroad company, in so acting, appropriates the property of the private owner and is liable to him to the extent that the value of the property has been diminished thereby, as well as for damages caused by its negligent and unskillful construction.
    2. Same — Delegated Powers.
    The right conferred upon a municipality to grade its streets without liability to abutting owners, within the proper exercise of its discretionary power, is for the public benefit, and cannot be transferred to a railroad company to do so.for the furtherance of its own business. .
    8. Municipal Corporations — Grading Streets — Railroads—Measure of Damages — Issues.
    It appearing in -this case that a railroad company was appropriating private property to its own use in grading a street of a city for its own purposes, it is held that one issue submitted as to the damages was sufficient, and that permanent damages were-recoverable by the' abutting owners.
    
      4. Evidence — Damages—Railroads—Grading Streets — Test of Opinion — Other lots — Comparative Values.
    In an action to recover damages to plaintiff’s lot caused by the defendant grading a street upon which it abutted, a witness testified as to the value of plaintiff’s, lot, and it is held that the trial court committed no error in permitting him to testify the price he realized from the sale of his own lot as a test of the value of his opinion, there being some evidence of the similarity of the two lots, and of their condition, surroundings and value.
    Appeal by plaintiff from Devin, J., at February Term, 1915, of For-syth.
    Civil action. This action was brought by tbe plaintiffs against' tbe defendant and tbe city of Winston-Salem to recover damages for injury to tbeir lot in said city, caused by tbe construction of a bridge or a viaduct and tbe approaches thereto, along Bank Street in said city, and between Liberty and Elm streets. It appears in tbe case that tbe defendant railroad company bad laid a part of its track across Bank Street at grade, and, desiring to raise tbe grade of tbe street, and for that purpose to build tbe bridge in question and construct tbe approaches thereto, it obtained permission from tbe city to do so, upon giving a bond to indemnify it against tbe damages. Tbe railroad company then proceeded with tbe work, constructed tbe bridge, and raised tbe level of tbe street in such a way that ingress and egress to tbe plaintiffs’ lot was so obstructed as to greatly impair tbe value of tbe property. This was tbe allegation of tbe plaintiffs, and there was proof to sustain it, though it was denied by the defendant, which alleged that tbe work was done by the permission of tbe city and under its authority, and was also carefully performed according to a correct plan. Tbe case was submitted to tbe jury upon tbe following issue:
    Has tbe plaintiffs’ property been damaged by tbe erection of tbe bridge along Bank Street, as alleged, and if so, in what amount? A. Yes; $2,250.
    Judgment was rendered upon tbe verdict and tbe plaintiffs appealed, and reserved several exceptions to tbe rjilings and judgment of tbe court.
    
      Louis M. Swinlc for plaintiffs.
    
    
      Watson, Buxton & Watson for defendant.
    
   Walker, J.,

after stating tbe case: It is apparent from the entire record in this case that tbe railroad company in constructing tbe bridge and its approaches was acting in its own behalf and for its own use and benefit, although it bad obtained tbe permission of tbe city to do tbe work, and tbe same was done with its consent, but tbe work was not done by tbe city in the exercise of its governmental function, through tbe defendant, so as to protect tbe latter from liability except for negligence. It -is well settled witb us, and it is very generally beld in other jurisdim tions, that, unless otherwise provided by the Constitution or statute, the owner of property abutting on a street cannot recover for any damage' to his property caused by a change in the grade of the street under proper municipal authority, where there is no negligence in the method or manner of doing the work. Meares v. Wilmington, 31 N. C., 73; Wolf v. Pearson, 114 N. C., 621; Jones v. Henderson, 147 N. C., 120; Dorsey v. Henderson, 148 N. C.; 423; Harper v. Lenoir, 152 N. C., 723; Stratford v. Greensboro, 124 N. C., 127; Jeffress v. Greenville, 154 N. C., 500; Hoyle v. Hickory, 164 N. C., 82; Hoyle v. Hickory, 167 N. C., 621; McQuillin Mun. Corp., sec. 1975; 2 Dillon Mun. Corp., sec. 1040.

In Hoyle v. Hickory, 167 N. C., 620, this Court said: “It was decided in the former appeal that while plaintiffs could not recover for any detriment to their property which was the result merely of the proper grading of the street, which had been done in the due exercise of the discretionary power of the city to make needed improvements, it being damnum absque injuria, yet they could recover for any damage doné thereto which was caused by a negligent grading of the street, following the principle as adopted in numerous decisions of this Court,” citing many authorities.

This principle, we stated in the same case, has been recognized and enforced since the days of Chief Justice Kenyon and Justice Buller. Mfrs. v. Meredith, 4 Durnf. & East, 794, 796; Sutton v. Clark, 6 Taunt., 28; Boulton v. Crowther, 2 Barn. & Cres., 703. The doctrine is almost universally accepted by the State courts of this country. Cooley Const. Lim., 542, and notes. It was affirmed in Transportation Co. v. Chicago, 99 U. S., 635; Smith v. Washington, 20 How., 135, and Meade v. Portland, 200 U. S., 148.

As stated by the Court in the case last cited, it may be thus summarized: The doctrine, however it may at times appear to be at variance with natural justice, rests upon the soundest legal reason. The State holds its highways in trust for the public. Improvements made by its-direction or by its authority are its acts, and the ultimate responsibility,' of course, should rest upon it. But it is the prerogative of the State! to be exempt from coercion by suit, except by its own consent. This prerogative would amount to nothing if it did not protect the agents for improving highways which the State is compelled to employ. This principle of the law is usually made to rest upon the theory that any and all changes of this character in the streets of the town are supposed to have been contemplated, and, therefore,' provided for in advance of the improvement and at the time of the original dedication of the stréet} and any abutting owner acquires and improves his property: with-full-notice that such changes may be made from time to time. Nichols Power of Em. Dom., secs. 81, 82, and 83; Lewis Em. Dom. (3 Ed.). sec. 134.

Nichols Em. Dom., supra, says: “When a highway is raised or lowered in grade so that it may be made safer or more convenient for traveling, the owner is not entitled to compensation. . . . The true reason for the rule is that when a highway is laid out the estimate taken includes the right to grade and construct than, or at any future time, in such a manner as the public authorities may deem conducive to safe and convenient traveling.” And Lewis Em. Dom., supra,, says: “When a street or highway is laid out compensation is given once for all, not only for the land taken, but for damages which may, at any time, be occasioned by adapting the surface of the street to the public needs.”

This power to further grade and improve the streets of the town is a continuing one, and may be exercised in the legal discretion of the municipal government whenever the public may require it, as will appear from the above cited authorities, and also 1 Elliott Streets and Roads (3 Ed.), sec. 551. This discretion, although it may be a legal one, cannot be interfered with by the courts, except in case of manifest and gross abuse, or when it would be arbitrary and oppressive. Brodnax v. Groom, 64 N. C., 244; Small v. Edenton, 146 N. C., 527; Luther v. Comrs., 164 N. C., 241, and other cases above cited. This power of the municipal corporation may, of course, be exercised by it through its awn agents, who are commissioned or appointed to do the work which may be required, in order to make the improvement in the street. And when the work is done carefully, either by the corporation itself or by it when acting through its agents, the abutting owner has no legal right to redress, and any damage to his property or loss to him by reason of the improvement is considered by the law as damnum absque injuria — a loss without injury, the last word being used in the sense of an actionable wrong.

These principles have been very recently discussed by us in Wood v. Land Co., 165 N. C., 367, where the authorities are collected. But the defendant in this case, the railroad company, can take no advantage of them upon the facts as they appear in this record. The city of Winston-Salem was not acting in its corporate capacity, and in the exercise of its municipal authority in raising the grade of Bank Street, solely for the public’s use and convenience. On the contrary, the defendant was •acting for itself and in furtherance of its own interests, and the mere fact that it had obtained the permission of Ihe city to do the work does hot vary the case, or take it out of the principle, so well settled, that private property should not be taken except for a public use, and then Only Upon just compensation. We presume the railroad company had the right' to condemn the plaintiffs’ property under its charter, and for tbe sake of argument'we will assume tbis to be true, it being a public-service corporation; but if it bas, in a legal sense, taken or appropriated tbe plaintiffs’ property, it is liable to them to tbe extent that tbe value of tbe property bas been diminished thereby, and if it bas done, the work unskillfully and negligently it would be liable to tbe plaintiffs also for any damage resulting therefrom. Tbe city could not transfer to an individual, or to tbe qricm-public corporation for its own service and profit, tbis superior and sovereign right which is allowed tó be used only for tbe public benefit. Brown v. Electric Co., 138 N. C., 533; Stratford v. Greensboro, supra. Tbe Legislature bas no power, itself, to authorize corporations to take or use private property without compensation, and, of course, could not confer such a power upon tbe city. Telegraph Co. v. McKenzie, 74 Md., 36; Walters v. R. R., 120 Md., 644; Egerer v. R. R., 14 L. R. A., 381, and notes; Muhlker v. R. R., 197 U. S., 49; Vanderlip v. Grand Rapids, 16 Am. St. Rep., 607, and notes; White v. R. R., 113 N. C., 611; Guano Co. v. Lumber Co., 168 N. C., 337 (84 S. E. Rep., 346) ; Hester v. Traction Co., 138 N. C., 293.

Tbe principle is well expressed in Reining v. R. R., 128 N. Y., 168, where it is said: “We think it cannot, under tbe guise of exercising tbis power, appropriate a part of tbe street to tbe exclusive, or, practically, to tbe exclusive use of tbe railroad ■ company, so as to cut off abutting owners from tbe use of any part of tbe street, without making compensation for tbe injury sustained.” In tbis particular case, as is shown in tbe record, tbe object of making tbis improvement was to subserve tbe railroad use, so that it might better control its track and appurtenances, and facilitate tbe movement of its trains over it. Tbe street, therefore, was subjected to a new burden in favor of tbis defendant, and tbis may be done, in tbe exercise of tbe power of eminent domain, which belongs not only to tbe sovereign, but may be imparted to a public-service corporation by legislative enactment, provided adequate provision is made for tbe compensation of any private owner of property which will be damaged by tbe exercise of tbe power. It would be useless to pursue tbis subject any further, as tbis power bas been so fully considered heretofore by tbe Court, and its scope and extent clearly defined. We will call special attention, though, to Brown v. Electric Co., Stratford v. Greensboro, and Moore v. Power Co., all cited supra, where a full discussion of tbe matter will be found, as well as in several of tbe other cases cited.

It will be observed that, in tbis case, there was but one issue submitted to tbe jury, and that related only to tbe question of damages and tbe amount which plaintiffs were entitled to recover. There was no issue involving tbe question as to tbe authority of tbe railroad company to do tbis work and be immune from liability for damages, unless it was done negligently; but even if such an issue bad been submitted, it is so very clear that it possessed no such right as to practically eliminate that question from the case/ and, upon the issue as to damages, the charge of the court was entirely free from error. The plaintiffs were entitled to recover for the diminution in value of property which was caused by the defendant’s wrongful act, or by the appropriation of their property to its use, and in respect to works of this kind, which are of a lasting nature, the plaintiffs were entitled to recover permanent damages. Lloyd v. Venable, 168 N. C., 531; Waste Co. v. R. R., 167 N. C., 340, and R. R. v. Mfg. Co., 369 N. C., 160.

There is a question of evidence in the case, but we think his Honor ruled correctly in regard to it. The plaintiffs did not attempt to show substantively by the cross-examination of the witness what was the value of their lot as compared with his, but the question was asked, as to what he had realized from the sale of his property, for the purpose of testing the value of his opinion, which had been before elicited by the defendant as to the value of the plaintiffs’ lot, which he had estimated at a very low figure, there being, in our opinion, some evidence as to the similarity of the two lots, and their condition, surroundings and value, and at least enough to permit a cross-examination of the witness upon the subject. We do not think that the ruling of the court violated the principle as stated in Warren v. Makely, 85 N. C., 12; Bruner v. Threadgill, 88 N. C., 361, and Board of Education v. Makeley, 139 N. C., 31. The other exceptions are sufficiently covered by our discussion of those which we deem the important and controlling ones in the case.

Before closing this opinion we will call attention to the case of Waste Co. v. R. R., supra, as containing a very full, discussion of the leading questions in this case, as applied to a state of facts very similar to those which are presented in this record.

After a careful analysis of the case, and a thorough consideration of the points presented by the learned counsel for the defendant, we are convinced that there has been no error committed during the trial.

No error.  