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The ordinance under which the defendants justified is inserted in the margin; also the sections of the Virginia Acts of Assembly, 1869-70, under which the ordinance was passed, are inserted in the margin.† [89] *The Constitution of Virginia, so far as involved in this controversy, provides in article 5, section 14, that the general assembly shall not pass "any laws whereby private property shall be taken for public use without just compensation."


Mr. Henry R. Pollard for plaintiff in


Messrs. H. T. Wickham and Henry Taylor, Jr., for defendants in error.

*Mr. Justice McKenna, after stating the case, delivered the opinion of the court: The jurisdiction of this court is challenged. The defendants in error claim that "the declaration shows no point is therein raised which demanded the consideration by the court of any constitutional question," and they insist further that "if it were intended to raise the question that the charter and ordinance were unconstitutional, and in consequence thereof plaintiff was deprived of his property without due process of law, the same should have been specially set up as claimed by apt language in the declaration so as to bring the question to the attention of the court when it had to pass on the demurrer." This certainly was not done, and if it tOrdinance Permitting the Richmond & Alleghany Railroad Company to Close a Certain Portion of Eighth Street, and Requiring Them to Erect a Foot Bridge. (Approved June 28, 1886.)

was an indispensable condition to the jurisdiction of this court it has none.

But it was done subsequently, as we have stated, and, whatever the ground of the court's ruling on the demurrer and on the first motion to reverse that ruling, the second motion was unequivocally based on the invalidity of the city ordinance because of its asserted conflict with the Fourteenth Amendment of the Constitution of the United States, and the court's ruling necessarily responded to and opposed the grounds of the motion-necessarily denied the right specially set up by him under the Constitution. Plaintiff's motion and the special grounds of it and exceptions to the ruling of the court were embraced in a bill of exceptions, and allowed and became part of the record on his petition to the supreme court of appeals of Virginia for a review and reversal of the judgment, and the petition besides explicitly set up and urged a right under the Constitution of the United States.

*The court of appeals rejected the petition. [92] Its order recited that, having maturely considered, and the transcript of the record of the judgment aforesaid seen and inspected, the court, being of opinion that such judgment is plainly right, doth reject said petition."

Necessarily, therefore, the supreme court of appeals did as the court of the city of Richmond did-considered the right which plaintiffs claimed under the Constitution of rate offense; and the city may in all such cases repair said bridge or stairways when not done by said company as herein required, and the expense thereof shall be a debt against the said company recoverable as debts are now recoverable by the city of Richmond.

Fourth. The said company, by exercising the privileges herein granted, doth hereby agree and bind themselves to indemnify and save harmless at all times the said city from any loss or damage suffered by reason of anyone being injured in any manner in using said bridge or stairways, or by reason of the building or existence of the same, and shall pay to the city any amount or amounts recovered against said city by any judgment or judgments given on account of any such injuries.

Fifth. The above-described portion of Eighth street shall remain closed until the said Richmond & Alleghany Railroad Company shall have been ordered by the ordinances of two successively elected councils to remove the said overhead bridge and restore the street to its present condition, and to the same authority and control of the city as existed prior to the passage of this ordinance. Whenever it is so ordered to be reopened, the said company shall be allowed three months from the date of the passage of the last of the said two ordinances in which to remove said bridge and stairways, and to restore said Eighth street to the same condition in which it was before the passage of this ordinance. And should the said company fail to remove said bridge and stairways and to restore said Eighth street to its former condition, before the expiration of the said three months, then the said company shall be liable to a fine of one hundred dollars, and each day's default shall be a separate offense; and the said city may remove said bridge and stairways and restore said Eighth street as above mentioned, when not done by said company as above required, and

Be it ordained by the city council of Richmond, First. So much of Eighth street as lies between the present southern boundary line of the property of the Richmond & Alleghany Railroad Company, being also the southern boundary line of the right of way of the James River & Kanawha Company, and a line drawn across Eighth street at right angles, sixty feet north of the face of the north wall of the canal as said wall is now built, shall be, and the same is hereby, closed from the 31st day of August, 1886, until it is required to be reopened in accordance with the provisions of this ordinance: Provided, that the said Richmond & Alleghany Railroad Company shall, on or before the said 31st day of August, begin to erect an overhead foot bridge across the tracks and canal of said railroad on that portion of Eighth street above described, and shall complete the same by the 30th day of September, 1886.

Second. The said bridge and the stairways thereto shall be twelve feet wide, and shall be so located, and shall be of such material or materials, design, security, and capacity, as may be required by the city engineer; the same shall always be kept and maintained in such condition and repair as may be from time to time required by the committee on streets of the said city council, and always be open to the free use of the public.

Third. Should the said company fail for the space of ten days to put the said bridge or stairways in such condition or repairs, after having been required so to do by said committee, ther the said company shall be liable to a fine of fifty dollars, to be imposed by the police justice of Richmond, and each day's failure to be a sepa

the United States, and denied the right. | ber entered a motion before that court to Chicago, Burlington & Q. Railroad Co. v. quash the writ because the decree on which Chicago, 166 U. S. 228 [41: 982]. the writ was issued and the writ were void, So far the conditions of the power of re- because said writ would deprive him of his view by this court existed. A right under property without due process of law, and the Constitution of the United States was because it was issued in violation of the Conspecially set up and the right was denied. stitution of the United States and amendWas it set up in time? It has been repeat-ments thereto. The motion was denied and edly decided by this court that to suggest or Loeber prosecuted an appeal which affirmed [93] set up a Federal question for the first time the order of the lower court, holding that in a petition for a rehearing in the highest the state law upon which it had made its decourt of a state is not in time. Texas & Pa- cision was not in conflict with the Constitucific Railway Co. v. Southern Pacific Rail- tion of the United States. From this judgroad Co. 137 U. S. 48, 54 [34: 614, 617]; ment of the court of appeals, Loeber proseButler v. Gage, 138 U. S. 52 [34: 869]; Win- cuted a writ of error to this court assigning ona & St. Peter Railroad Co. v. Plainview, the unconstitutionality of the state law sus143 U. S. 371 [36: 191]; Leeper v. Texas, 139 tained by the court of appeals. U. S. 462 [35: 225]; Loeber v. Schroeder, 149 U. S. 580 [37: 856].

Mr. Justice Jackson, who delivered the opinion of the court, said: "The motion to quash the fi. fa. in this case on the grounds that the order of the court of appeals, which directed it to be issued, was void for the reasons assigned, stood on no better footing than a petition for rehearing would have done and suggested Federal questions for the first time, which, if they existed at all, should have been set up and interposed when the decree of the court of appeals was rendered on January 28, 1892. In other words, should have been urged when the case was pending and before its decision. It is an inference from the opinion that, if this had been done, the Federal question would have been claimed in time.

In all of these cases the Federal question was not presented in any way to the lower court nor to the higher court until after judgment. It is not, therefore, decided that a presentation to the lower court at some stage of the proceedings and in accordance with its procedure, and a presentation to the higher court before judgment, would not be sufficient.

In Loeber v. Schroeder the court of appeals of Maryland, having before it for review a judgment of one of the lower state courts, reversed such judgment, and, having denied a rehearing on April 28, 1892, issued its order for a fieri facias against Loeber for the amount of the judgment decreed returnable to the lower court. On April 29, 1892, Loe

the expense thereof shall be a debt against the said company recoverable as debts are now recoverable by the city of Richmond.

Sixth. The said company doth, by exercising the privileges herein granted, agree and bind itself and its assigns to make no claim to the land now occupied by that portion of Eighth street to be closed, on account of said closing or the privileges herein granted, and doth fully recognize and admit the right of the said city to reopen the said Eighth street at any time, according to the provisions of this ordinance.

Seventh. Nothing in this ordinance shall conflict in any way with the ordinance approved May 12, 1886, granting permission to the Richmond & Chesapeake Railroad Company to construct a tunnel under Eighth street; and should the bridge constructed under this ordinance obstruct in any manner the said tunnel or tracks leading thereto, it shall be changed by the said Richmond & Alleghany Railroad Company withIn sixty days after receipt of notice from the committee on streets of the said city council requiring such change to be made.

A copy.


Ben. T. August, City Clerk. Virginia Acts of Assembly, 1869-'70, pp. 120146. Sec. 19. The city council shall have, subject to the provisions herein contained, the control and management of the fiscal and municipal affairs of the city and of all property, real and personal, belonging to the said city; and may make such ordinances, orders, and by-laws, relating to the same, as it shall deem proper and necessary. They shall likewise have the power to make such ordinances, by-laws, orders, and regulations as they may deem desirable to carry out the following powers which are hereby vested in them:

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VII. To close or extend, widen or narrow, lay out and graduate, pave and otherwise improve streets and public alleys in the city, and have them properly lighted and kept in good order; and they shall have over any street or alley in the city, which has been or may be ceded to the city, like authority as over other streets or alleys. They may build bridges in and culverts under said streets, and may prevent or remove any structure, obstruction, or encroachment over or under, or in a street or alley, or any sidewalk thereof, and may have shade trees planted along the said streets; and no company shall occupy with its work the streets of the city without the consent of the council. In the meantime no order shall be made and no injunction shall be awarded, by any court or judge, to stay the proceedings of the city in the prosecution of their works, unless it be manifest that they, their officers, agents, or servants are transcending the authority given them by this act, and that the interposition of the court is necessary to prevent injury that cannot be adequately compensated in damages.

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Sec. 22. The council shall not take or use any private property for streets or other public purpose without making to the owner or owners thereof just compensation for the same. But in all cases where the said clty cannot by agreement obtain title to the ground necessary for such purposes, it shall be lawful for the said city to apply to and obtain from the circuit or county court of the county in which the land shall be situated, or to the proper court of the city having jurisdiction of such matters, if the subject lies within this city, for authority to condemn the same; which shall be applied for and proceeded with as provided by law.

under the Constitution of the United States | Constitution and laws of Virginia as well as was claimed by plaintiff in error after ver- the prohibition of the Constitution of the dict and in a motion to set aside the verdict United States. If the decision necessarily and to grant a new trial. It is true that, in passed on and denied the latter as we hold it that case being a proceeding to condemn land did, and hence entertain jurisdiction to reunder the eminent domain act of the state of view its judgment, it necessarily passed on Illinois, no provision was made for an an- and denied the former. If under the Consti- [95] swer, but this accounts for some, but not all, tution and laws of Virginia whatever detriof the language of the decision. Mr. Justice ment he suffered was damnum absque injuHarlan, speaking for the court, said: "It ria, he cannot be said to have been deprived is not, therefore, important that the defend- of any property. Marchant v. Pennsylvania ant neither filed nor offered to file an answer Railroad Co. 153 U. S. 380 [38: 751]. specially setting up or claiming a right under the Constitution of the United States. It is sufficient if it appears from the record that said right was specially set up or claimed in the state court in such manner as to bring it to the attention of that court." But he said further: "But this is not all. In the assignment of errors filed by the defendant in the supreme court of Illinois these claims of rights under the Constitution of the United States were distinctly asserted."

The similarity of that case to the case at bar is apparent. In both, the constitutional [94] right was claimed in such manner as to bring it to the attention of the lower court, and its decision was necessarily adverse to such right. In both it was reasserted in the assignment of errors to the higher court, and there again in both the effect of the judgment was to declare the right not infringed by the proceedings in the case. This court, therefore, has jurisdiction, and we proceed to the consideration of the merits.

The plaintiff's constitutional claim is under that provision of the Fourteenth Amendment, which prohibits a state from depriving any person of property without due process of law, and he avails himself of it by the contention (which we give in his own language):

"That under the Constitution and laws of the state of Virginia, the free and uninterrupted use of highways, once dedicated to and accepted by the public, or acquired by the right of eminent domain, are for continuous public use, and that, when relying upon that fact, important public and private property rights have been acquired, the highway cannot be permanently diverted to a private use without proper compensation being made to those injured, and as a consequence, any person or persons so diverting such highway are trespassers and liable in damages to the parties injured."

The proposition is very general. To make it available to plaintiff in error it must be held to cover and protect an owner whose property abuts on one part of a street from damage from obstruction placed in another part of the street and not opposite his property-not only a physical taking of his property, but damages to it not only direct damages, but consequential damages. All of these aspects of the proposition seem to be rejected by the decision of the supreme court of appeals of Virginia on the plaintiff's petition for writ of error. The petition submitted for decision the power of the city of Richmond to make or authorize the obstruction complained of under its charter, and the

The plaintiff quotes Western Union Telegraph Co. v. Williams, 86 Va. 696 [8 L. R. A. 429]; Hodges v. Seaboard & R. Railroad Co. 88 Va. 656; Norfolk City v. Chamberlaine, 29 Gratt. 534; Bunting v. Danville, 93 Va. 200. The case at bar is not within the principle of these cases. These were concerned with erections immediately in front of the abutting owner's property, and it was held that he owned to the middle of the highway, subject only to the easement of the latter; that it was for the easement only for which he was compensated, and that any other use was an additional servitude and its authorization illegal unless paid for.

In Home Building & C. Co. v. Roanoke, 91 Va. 52 [27 L. R. A. 551], the city of Roanoke authorized the erection of a bridge across a street in the city and itself constructed the approaches to it. These approaches were sixteen feet high and thirty-five wide, but did not extend to either side of the street, but left on each side about seven and onehalf feet unoccupied on Randolph street, on which the complainant's lot was situated, available for its use and that of the public. It was held that the city was not liable.

The substantial thing is not that one may be damaged by an obstruction in a street,not that one may be specially damaged beyond others, but is such damage a deprivation of property within the meaning of the constitutional provision? According to the Virginia cases an additional servitude may be said to be another physical appropriation, and hence another taking, and must be compensated. But the plaintiff's case is not within this doctrine, nor is there anything in the decisions of Virginia which makes consequential damages to property a taking within the meaning of the Constitution of that state. Decisions in other states we need not resort to or review. Those of this court furnish a sufficient guide. Northern Transpor tation Co. v. Chicago, 99 U. S. 635 [25: 336]; Chicago v. Taylor, 125 U. S. 161 [31: 638]; Marchant v. Pennsylvania Railroad Co. 153 [96] U. S. 380 [38: 751]; Gibson v. United States, 166 U. S. 269 [41: 996].


In Northern Transportation Company v. Chicago it was decided "that acts done in the proper exercise of governmental power and not directly encroaching on private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision." Removing any apparent antago nism of this proposition to Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166 [20: 557], and Eaton v. Boston, Concord & Montreal Railroad Co. 51 N. H. 504 [12 Am. Rep. 147],

it was further said that in those cases "the extremest qualification of the doctrine is to be found, perhaps," and they were discriminated by the fact that in them there was a permanent flooding of private property, hence a "taking" "a physical invasion of the real estate of the owners and a practical ouster of his possession."


In Chicago v. Taylor, Taylor sued to recover damages sustained by reason of the construction by the city of a viaduct in the immediate vicinity of his lot. The construction of the viaduct was directed by special ordinances of the city council. The facts

In Marchant v. Pennsylvania Railroad Co. the plaintiff owned a lot on the north side of Filbert street, Philadelphia; the railroad erected an elevated railroad on the south side of the street and opposite plaintiff's property. It was held by the supreme court of Pennsylvania, reversing the trial court, that for the damages hence resulting the plaintiff could not recover. The case was brought to this court by writ of error, the plaintiff urging that her property had been taken without due process of law. The judgment was affirmed. The court, by Justice Shiras, said: "In reaching the conclusion that the plaintiff, under the admitted facts in the case, had no legal cause of action, the supreme court of Pennsylvania was called upon to construe the laws and Constitution of that state. The plaintiff pointed to the tenth [98] section of article 1 of the Constitution, which provided that 'private property shall not be taken or applied to public use, without authority of law, and without just compensation being first made or secured;' and to the eighth section of article 16, which contains the following terms: 'Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured, or destroyed, by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or destruction.'

"The first proposition asserted by the plaintiff, that her private property has been taken from her without just compensation having been first made or secured, involves certain questions of fact. Was the plaintiff the owner of private property, and was such property taken, injured, or destroyed by a corporation invested with the privilege of taking private property for public use? The title of the plaintiff to the property affected was not disputed, nor that the railroad company was a corporation invested with the privilege of taking private property for public use. But it was adjudged by the supreme court of Pennsylvania that the acts of the defendant which were complained of did not, under the laws and Constitution of the state, constitute a taking, an injury, or a destruction of the plaintiff's property.

"We are not authorized to inquire into the grounds and reasons upon which the supreme court of Pennsylvania proceeded in its construction of the statutes and Constitution of that state, and if this record presented no other question except errors alleged to have been committed by that court in its construction of its domestic laws, we should be obliged to hold, as has been often held in like cases, that we have no jurisdiction to review the judgment of the state court, and we should have to dismiss this writ of error for that reason."


"For many years prior to, as well as at, the time this viaduct was built, the lot in question was used as a coal yard, having upon it sheds, machinery, engines, boilers, tracks, and other contrivances required in the business of buying, storing, and selling coal. The premises were long so used, and they were peculiarly well adapted for such business. There was evidence before the jury tending to show that, by reason of the construction of the viaduct, the actual market value of the lot, for the purposes for which it was specially adapted, or for any other purpose for which it was likely to be used, was materially diminished, access to it from Eighteenth street being greatly obstructed, and at some points practically cut off; and that, as a necessary result of this work, the use of Lumber street, as a way of approach to the coal yard by its occupants and buyers, and as a way of exit for teams carrying coal from the yard to customers, was seriously impaired. There was also evidence [97] tending to show that one of the *results of the construction of the viaduct, and the approaches on either side of it to the bridge over Chicago river was, that the coal yard was often flooded with water running on to it from said approaches, whereby the use of the premises as a place for handling and storing coal was greatly interfered with, and often became wholly impracticable.

"On behalf of the city there was evidence tending to show that the plaintiff did not sustain any real damage, and that the inconveniences to occupants of the premises, resulting from the construction and maintenance of the viaduct, were common to all other persons in the vicinity, and could not be the basis of an individual claim for damages against the city."

There was a verdict and judgment against the city, and this was sustained. The tenor of the decision is, that the damages were consequential, and the difference of the ruling from that in Northern Transportation Co. v. Chicago was explained and based upon a change in the Constitution of the state of Illinois, which enlarged the prohibition to the damaging as well as to the taking of private property for public use, and its interpretation by the supreme court of the state "that it does not require that the damage shall be caused by a trespass, or an actual physical invasion of the owner's real estate; but if the construction and operation of the improve-provement of rivers and harbors. The conment is the cause of the damage, though con- struction of said dike by the United States sequential, the party may recover." substantially destroyed the *landing of Mrs. [99]

In Gibson v. United States a dike was constructed in the Ohio river under the authority of certain acts of Congress for the im

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