
    (44 South. 882.)
    No. 16,533.
    MANNING v. CITY OF SHREVEPORT.
    (June 21, 1907.
    On Rehearing, Nov. 18, 1907.)
    1. Eminent Domain — Municipal Corporations — Change of Street Grade — Right to Damages.
    Under article 167 of the Constitution, the owner of property abutting upon a street in a municipal corporation is entitled to recover the damages sustained by the property by reason of the grading, or change in the grading, of the street, and in estimating the value of the property for the purpose of assessing such damages the benefit to result from the grading is to be considered only in so far as it is peculiar to the property; the benefit so resulting which is common to the community not being taken into account.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 390.]
    2. Same — When Liability Arises.
    By the adoption of a grade, thereafter to be established, the corporation fixes the status of an existent lot as property which must, sooner or latter, be affected by the actual establishment of the grade so adopted, and the right to recover for such damage as it may sustain, though inchoate at the moment, becomes perfect when the damage is actually inflicted, and may be exercised by the then owner. But, if the lot be not improved when the grade to be -•actually established in the. future is adopted (on paper), no liability for damage to improvements is imposed and no right of recovery with respect- thereto is created. Under such circumstances, if then nonexistent improvements are •subsequently and at the option of the owner placed on a lot, they come into existence subject to conditions already established, and of -which the owner of the lot ha's notice, and he must govern himself accordingly.
    [Ed. Note. — For cases in point, see Cent. Dig. -voí. 18, Eminent Domain, §§ 266, 269, 270.]
    Land and Provosty, JJ., dissenting in part.
    On Rehearing.
    3. Same-Mnitial Grading.
    Under article 167 of the Constitution of 1898 a municipal corporation is responsible for •damage to private property resulting from the initial grading of a street, as well as from a -change of the established grade. The rule, ■“Damnum absque injuria,” was abrogated by said article of the Constitution in all such -cases.
    4. Same — Measure oe Damages.
    In this case the measure of damages is the -consequential diminution of the market value of the property or the improvements thereon by reason of the grading. The necessary cost of ■changes and alterations of improvements and ' premises in order to preserve the same and to ■conform to the new grade is an element of damage which should be considered.
    (Syllabus by the Court.)
    Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, .Judge.
    Action by D. T. Manning against the city •of Shreveport. Judgment for defendant, and plaintiff appeals.
    Reversed, and judgment Tendered.
    Leon Rutherford Smith, for appellant. Ruffin Golson Pleasant, City Atty. (John Dallas Wilkinson, of counsel), for appellee.
   MONROE, J.

Plaintiff is the owner of •the property upon which he lives, fronting "70 feet on Park avenue, in the city of Shreveport, and extending 150 feet along Laurel ¡street, to an alley, and he complains that ■recently, and since his acquisition, the city has changed the grades of the two streets mentioned and has cut down the alley, so as injuriously to affect the value of his property and render it necessary that he should build retaining walls, etc. He estimates his damages at $4,000, and prays judgment for that amount. The defense is a general denial and an averment that the benefit resulting to plaintiff’s property from the matters complained of are greater than the injury.

It appears from the evidence: That plaintiff’s residence, at its nearest point (which is a projecting room) stands 19% feet from the banquette on Park avenue, and has a gallery extending along Laurel street (within a few inches of the property line) and supported by brick pillars; that his barn is built on the lines forming the corner of Laurel street and the alley; that before he bought the property the grades of the two streets mentioned had been adopted, though not actually established (being what are called “paper” grades), as 3% feet lower than the surface; and that after his purchase the city established the grades of which he complains as 3% feet lower than those previously adopted, and has proceeded to establish them to the extent of excavating Park avenue to a depth of 5.3 and Laurel street to a depth of 5.7 feet, the reason for its not excavating to the full depth (of 7 feet) being that the sewers of the city are in the way. As a result, of the work so done the'roadways on Park avenue and Laurel street have been lowered about 2 feet below the grades previously adopted (on paper), the banquettes have been provided with precipitous sides of unstable soil from 6 to 8 feet high; and the surface of the alley in the rear has been cut down below that of the property (leaving its sides in the same condition as those of the banquettes) to such a depth as to render it impracticable to' drive a vehicle into or out of the barn, so that the premises are, reasonably speaking, inaccessible, and the immediate surroundings unsightly, and, as the sides of the banquettes are washing and caving, this condition is not likely to improve, but is getting worse,' and the barn, which I stands upon the line of the alley, will in all probability fall into it before a great while, unless measures are taken to prevent it. So far as the banquettes are concerned, if the plaintiff, whether voluntarily or under compulsion, reduces them to a grade that will conform to those of the roadways, their raw, precipitous sides will be transferred to his lot, and the side on Laurel street will be immediately beneath his barn and the outer edge of the gallery of his house. Upon the other hand, if he leaves the banquettes as they are (assuming that he is permitted to do so), his house will be inaccessible from the roadways, as the roadways will be from the house, and, if he cuts passages through, he will render the banquettes impassable and dangerous, and no doubt get into trouble with the city authorities, and possibly with citizens who injure themselves by falling'into the cuts.

Considerable testimony was taken with a view of showing the effect of the condition as thus described upon the value of the property. A number of witnesses sworn for defendant are of the opinion that it affords plaintiff a fine opportunity to surround himself with terraces, and appear to think that the consequent enhancement in the value of the property will more than compensate the expense. They also think that, as the regrading .is to be followed by the establishment of a line of street cars on Laurel street' (in addition to the line already on Park avenue), plaintiff, even as the matter stands, has rather the better of the situation. There are other witnesses, called by plaintiff, who have not yet learned to appreciate tbe advantage of living above the dust and noise of the street and who are content with one line of cars — some of them going so far as to say that a little distance, a block, lends enchantment to the music of the bells. Upon the whole, this testimony is rather inconclusive as to what the effect of the grading (upon the value) will be, after the premises are again made safe, accessible, and presentable, and we are left in doubt whether either view would comm'and any overwhelming majority if submitted to the popular vote, the more-particularly as none of the witnesses seem; to have considered the question from a possible business, or “comer grocery,” point of view. We do not, however, understand any of them to hold that the property is now as desirable for use or as valuable for any other purpose as it was before the work of grading was done; the idea expressed by them being that it can be made so by the expenditure of a certain amount of money. As we are compelled, however, to deal with the question here presented upon the basis of an existing condition, rather than of a theory for the future, we consider that plaintiff’s, property has been damaged for a public purpose, and that the extent of the damage is represented by the amount that it will cost to put it in such condition as that it will be as desirable and valuable as before the damage was inflicted. As to what that cost will be there is a wide difference of opinion, A builder or contractor, who made an estimate at plaintiff’s request, testifies that the banquettes should be excavated, that there should be a retaining wall built around the three sides of the property, that the front lawn should be terraced, that there should be a concrete driveway and concrete steps on Park avenue, and that he will do the work for $2,240.79. Another idea which has been suggested, and which, in the last resort, is approved by the defendant, is that the side, as well as the front, of the lot can be terraced, and, by moving the barn, even the rear; that the brick pillars which support the Laurel street gallery can be extended downward the required distance, say 5% feet; and that no retaining wall is necessaiy, and one of defendant’s witnesses is willing to do-that work for $450. It is true that the supporters of this idea admit that the terrace under the gallery would probably produce no grass and would not be a thing of beauty, and they fail to explain, in view of the testimony that the soil is given to sliding in embankments, how such a terrace ■could be held in shape; nor, do we understand that, in the $450 referred to, there is included any compensation for the ground to be lost in the making of the terrace, particularly around the back yard, or for the inconvenience of having an improvement of that kind where a level surface would be more useful, as well as more appropriate. ‘Considering all the testimony as to the requirements of the occasion and the cost of making them, we are inclined to think that, as is sometimes the case, the plaintiff is demanding too much and the defendant is -conceding too little.

The city has done a work of great public utility, but it has no right to call upon the ¡plaintiff to pay more than his share. On the other hand, whilst the plaintiff is entitled to be made sound with respect to any particular damage that his property may have sustained for the purposes of such work, the -occasion is not one for the indulgence of vicarious liberality to himself with the money of the public. The law applicable to the ■case, as we understand it, is as follows:

The Constitution of the state provides that:

“Private property shall not be taken, nor damaged, for public purposes without just and adequate compensation,” etc. Article 167.

And the courts agree that such provision ■entitles an abutting proprietor to just and -adequate compensation for damages done to his property by the grading of a street. Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638. Before the words “nor damaged” were inserted in our Constitution, the Revised Civil Code contained a provision (as it does now) to the effect that, “in estimating the value of property to be taken” for & public purpose, there shall be no deduction on account of the benefit to be derived from the contemplated improvement (article 2633); the idea being that, in all benefits that inure to the community, each member of the community' is entitled to share upon the same terms as the others, and hence that, where the property of one is taken in order that such benefits may result, the owner is entitled to be compensated for the loss which he alone sustains, undiminished by any deduction on account of the benefit which he shares of right as a member of the community and in common with the other members. This having been, and being, the rule with respect to property which is “taken” for a public purpose, and the Constitution making the identical provision for compensation for property which is “damaged” for such purpose as for that which is “taken,” the same rule should be applied in the one case as in the other. As has been said by the Supreme Court of Missouri:

“Our Constitution secures to the property owner the right to compensation when his property is damaged in the same terms as when it is actually invaded and taken. No reason is seen why the rule for assessing the benefits should be different.” Hickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658.

Applying this law to the instant case, we are of opinion that the testimony as to the desirability of residence sites elevated above the streets of Shreveport, as compared with those upon the same level, is relevant, as tending to show, it is thought, a benefit peculiar to plaintiff’s property, but that the testimony offered to prove a benefit resulting from the prospective establishment of an additional street car line is irrevelant, as tending to show a supposed benefit which, if it be such, is common to the community, and is not, therefore, to be taken into account in the ascertainment of the damage for which plaintiff claims compensation. The constitutional provision quoted is equally applicable where the damage claimed results from the original establishment of a grade as where the grade once established is subsequently changed, or, in other words, where a village, town, or city, having a surface grade to begin with, establishes a grade other than the surface, and in so doing damages the property of an individual, such individual is entitled to compensation, under the Constitution, as a person whose property has been damaged for a public purpose. And the rule is the same where the damage is inflicted by a change in the grade so established. Hickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, and note, 41 Am. St. Rep. 684. The adoption of a (paper) grade may be said to fix the liability of the property affected by it to future damage, but the weight of authority is to the effect that such damage is not recoverable until actually inflicted, and hence that it is the owner at the time who may recover it.

A municipality may not be able to grade all of its streets at one time, but it has the undoubted right to declare in advance what the grade shall be, and though, quoad property then existing 'and affected or to be affected, the liability to damage is' thereby imposed, and the right to recover it may be said to attach to the property, to be exercised when the damage shall be actually inflicted, it cannot be said that any such liability is imposed, or that any such right attaches, with respect to property which is then nonexistent. In other words, by the adoption of a grade, to be thereafter established, the municipality fixes the status of an existent lot as property which must sooner or later be affected by the actual establishment of the grade so adopted, and the right to recover for such damages as it may sustain, though inchoate at the moment, becomes perfect when the damage is actually inflicted, and may be exercised by the then owner of the lot. But, if the lot be not improved when the grade to be actually established in the future is ¡adopted, no liability for damage to improvements is imposed, and -no right of recovery with respect thereto, whether inchoate or otherwise, is created. Under such circumstances, if the then nonexistent improvements are subsequently, and at the option of the owner, placed upon the lot, they come into existence subject to conditions al- ‘ ready established and of which the owner of the lot has notice, and he must govern himself accordingly. Blair v. Charleston, 43 W. Va. 62, 26 S. E. 341, 35 L. R. A. 856, 64 Am. St. Rep. 837, and authorities there cited..

The question then recurs: What amount of money will it be necessary for plaintiff to expend in order to make his premises as-desirable, and therefore as valuable, for use, and for renting and selling purposes, as it was before the grading was done? The property cost $3,000 in June, 1905, and plaintiff thereafter expended $2,000 in its improvement, and this, we infer from the testimony, at a time when he knew, or should have known, of the change of grade of which he-now complains. We therefore deal with the question presented as though the property were worth $3,000 when the change of grade-was made, and confine ourselves to the effect of the actual establishment of the grade of 3% feet, which had been adopted before his-improvements were added; and upon that basis we are of opinion that he should recover $750.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be-annulled, avoided, and reversed, and that there now be judgment in favor of the plaintiff, Drury T. Manning, and against the defendant, the city of Shreveport, in the sum. of $750, with legal interest thereon from judicial demand and costs in both courts.

LAND, J.

I dissent from the proposition-! that the defendant city is liable for damages caused by fixing original grade, but otherwise-concur.

PROYOSTY, J., concurs with LAND, J..

On Rehearing.

LAND, J.

The first question for consideration is whether the establishment of the first grade in the streets in question entitles plaintiff to recover consequential damages to his property under article 167 of the state Constitution.

In our original opinion a majority of the court answered this question in the affirmative, citing Hickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, and notes, 41 Am. St. Rep. 684. In that case a county road had been graded and used as such for many years, and residences and stores had been constructed on both sides for a considerable distance. The plaintiff had improved his property with reference to the then existing grade. Subsequently the limits of the city of Kansas City were extended so as to take in the road in front of the plaintiff’s property, and by ordinance the grade was changed and elevated about 3% feet. A street railway was constructed on the new grade and the street filled in, whereby plaintiff was compelled to raise his lot and improvements to conform to the established grade, at a cost of about $1,000.

The case before the court was1 one of the change of grade of a highway already established and graded. The Missouri Supreme Court, however, in its opinion, stated that the rule was the same in that state whether the grade was changed or was the first one established.

In the notes to Hickman v. City of Kansas we find a number of cases holding that damages caused by bringing a street to the first established grade are recoverable, and a few cases that qualify this doctrine by excepting changes which must have been in contemplation of the parties when' the property was taken or dedicated. The jurisprudence on the subject is collated in the notes to Leiper v. Denver (Colo.) 7 L. R. A. (N. S.) 108, where it was held that:

“A municipal corporation is not liable for injury to abutting property by alteration of the-natural surface of a street in bringing it to the first established grade, where the change is not unreasonable or carelessly done, even under a constitutional provision that private property shall not be damaged for public use without compensation.”

Judge Dillon is cited by the Colorado court as holding the same doctrine (see Municipal' Corporations [4th Ed.] vol. 2, § 995b), and the-courts of Georgia and Mississippi are re-ferred to in the opinion as possibly announcing the same rule of law. The editor of Lawyers’ Reports ‘Annotated says:

“An examination of the authorities shows-that they are massed against the position takem by the court in Leiper v. Denver.”

The Colorado court admits that its decision! is contrary to the rule laid down in the majority of the eases.

Further reflection has convinced the writer of this opinion that, quoad the damage to private property, there can be, in law, no difference between the initial grading and the change of the grade of a street. Both are-acts' done in the proper exercise of governmental powers and for a public purpose; but, if injury thereby result to private property,, compensation must be made. In Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638, it was held that, under the provision in the Illinois Constitution of 1870 that “private property shall not be taken or damaged for public use without compensation,”' a recovery may be had in all cases where private property has sustained a substantial injury from the making and use of an improvement that is public in its character. In that case the city of Chicago was held liable for-the consequential damages to private property arising from the lawful construction of a viaduct in one of its streets. Such a doctrine abolishes the ancient rule of “damnum absque injuria.” Hence we conclude that the-city of Shreveport is responsible for whatever property damage may have resulted to-the plaintiff from the grading of the two ■streets in question. The measure of damages is the consequential diminution of the market value of plaintiff’s property or improvements by reason of the grading in question. Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638; Griffin v. Railroad Co., 41 La. Ann. 808, 6 South. 624; McMahon & Perrin v. Railroad Co., 41 La. Ann. 827, 6 South. 640. In the last case the court said:

“There is no warrant for extending the liability one whit beyond this. We are simply to inquire what damage has been occasioned to ■the property; i. e., to its value for rental and .sale.”

The petitioner represents that his “property is well worth $7,500, and that its value has been greatly impaired by reason of said -change of grade in not less than $4,000.” We would infer from the allegations that before the change of grade the property was worth .$11,500. But the plaintiff purchased the property in June, 1905, for $3,000, and subsequently added improvements' to the value of $2,000, making the total cost $5,000. That the property was worth more at the time of the grading is doubtful. The first trial was .before a jury, and resulted in a mistrial. The second trial before the judge resulted in a judgment in favor of the defendant. In the face of the mass of contradictory testimony as to whether the market value of the property was injuriously affected by the grading of the streets1, we may well hesitate to reverse the judgment of the lower court. It is ■evident, however, that plaintiff will be compelled to make changes and alterations in his improvements and premises in order to preserve the same and to conform to the new grade. The cost of such necessary work to the property is a damage which should be •compensated under all the authorities. The estimates differ widely as to what work is necessary to preserve the improvements and make them conform to the new conditions. Two estimates were made — one of $2,240.79, and the other of $450. Our former judgment was for $750. We appreciate the difficulty of an appellate tribunal arriving at any satisfactory conclusion on the questions of fact presented in this record; but, as we have jurisdiction of issues of fact as well as questions of law, we are constrained to decide such issues the best we may in order to avoid interminable litigation. We see no good reason to change our former decree, and it is therefore ordered that the same be reinstated and made the judgment of this court.  