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ered of the corporation in the proper proceedings. 807 On the contrary, where the power is held a continuing one, the public authorities acting under the provisions of law can change and reestablish the grade of a highway within their jurisdiction whenever the public convenience and advantage demands without entailing upon the corporation any liability for damages sustained by the abutting property owner from their action.898 The question of the damages recoverable by the property owner will be considered in a later section. The liability of specific property for the expense of grading depends upon the character of the way, whether a street, as commonly understood, or a country way. If the former, property benefited must bear the burden,899 if the latter,

897 Coster v. City of Albany, 43 Georgetown, 6 Wheat. (U. S.) 593; N. Y. 399; City of Akron v. Cham- Shaw v. Crocker, 42 Cal. 435; Murberlain, 34 Ohio St. 328; Crossett v. phy v. City of Chicago, 29 Ill. 279; Jaynesville, 28 Wis. 420; Church v. Nevins v. City of Peoria, 41 Ill. 502; City of Milwaukee, 34 Wis. 66; Stad- Snyder v. Town of Rockport, 6 Ind. ler v. City of Milwaukee, 34 Wis. 98. 237; City of Terre Haute v. Turner, "The point to be resolved is, wheth- 36 Ind. 522; City of Aurora v. Fox, er the damages sustained by the 78 Ind. 1; Creal v. City of Keokuk, owner or occupant of the adjoining 4 G. Greene (Iowa) 47; Ross v. City tenement by reason of inconvenience of Clinton, 46 Iowa, 606.

in the transaction of his business, or the interruption or total suspension of it, or of the loss of his trade, custom or profits necessarily caused by the making and carrying on of the work of public improvement and while it progresses and until completion or so caused by the work of restoring the adjacent premises to the same relative position or condition as before the change of grade, are such as the statute contemplates and for which compensation must be made by the city. The authorities

But spe

cial damages caused by regrading a street may be recovered by a property owner. McVerry v. Boyd, 89 Cal. 304, 26 Pac. 885; Radcliff's Ex'rs v. City of Brooklyn, 4 N. Y. (4 Comst.) 195; Charlton v. Allegheny City, 1 Grant Cas. (Pa.) 208; Carr v. Northern Liberties, 35 Pa. 324; Humes v. City of Knoxville, 20 Tenn. (1 Humph.) 403.

899 Hillhouse v. City of New Haven, 62 Conn. 344, 26 Atl. 393; McLauren v. City of Grand Forks, 6 Dak. 397, 43 N. W. 710; Hayden v. are quite clear and decisive City of Atlanta, 70 Ga. 817; Morrithat such damages are not recovera- son v. King, 100 Ga. 357. The legble and such is and was the opinion islature may, however, provide for of this court in the present case." the payment by a municipality of And cases therein cited. See, also, the cost of grading or improving post, sections on public control of a street from its general funds. City of Leavenworth v. Laing, 6 But before a property

streets.

898 Goszler

V. Corporation of Kan. 274.

the cost is usually paid from the general revenues raised for that purpose. The expense of regrading where the power to grade is held a continuing one can be charged against property liable although it may have already borne the cost of a former grading.900 Where the other rule obtains the expense of regrading must be paid from the general revenues."

§ 427. To pave streets.

901

The right to pave a street will be found as coming within the power of public authorities to construct and maintain public highways. This particular improvement is generally applied to the streets of a town or village where more than an ordinary im

owner can be liable, the street must have been established as a legal one. Fox v. Middlesborough Town Co., 96 Ky. 262, 28 S. W. 766; Beidler Mfg. Co. v. City of Muskegon, 63 Mich. 44; Kansas City Grading Co. v. Holden, 32 Mo. App. 490. Where a street was filled by the dirt taken from another street cut down to grade, the expense being charged entirely upon the abutting property owners on the latter street, the contract for grading and tax bills issued in connection with it are void.

Little v. City of Newark, 36 N. J. Law, 170; In re New York Inst. for Deaf & Dumb, 121 N. Y. 234, 24 N. E. 378; Darlington v. Com., 41 Pa. 68; Reed v. City of Erie, 79 Pa. 346. A private way cannot be graded and paved and charged to the public expense. Findley v. Hull, 13 Wash. 236; McNair v. Ostrander, 1 Wash. St. 110, 23 Pac. 414; Blount v. City of Janesville, 31 Wis. 648. See §§ 337 et seq., on Local Assessments.

900 McVerry v. Boyd, 89 Cal. 304, 26 Pac. 885. "The objection by the appellant to the jurisdiction of the

supervisors to order the work done, upon the ground that the street had been previously graded is untenable. The statute in question (section three) gives to the board of supervisors the same authority for regrading as for grading a street. There is no limitation upon its powers in this respect. It is left to the discretion of the board to determine what work it will order done in any particular instance. Section fourteen of the act does not in terms purport to give to the superintendent exclusive or any jurisdiction to order the regrading of a street; but is limited to the improvement of a street in front of individual lots. Whenever the condition of a street is such as, in the estimation of the board of supervisors, it is proper that the burden of regrading the same should be borne by the entire block, it has authority to order such improvement even though a similar expense has previously been borne by the property owners." See, also, authorities cited under 88 337-8, supra.

901 Harmon v. City of Omaha, 17 Neb. 548.

provement and one of a greater or less degree of permanency is required and desired. 902 It comes within the term "a local improvement" and its cost, therefore, is met by the levying and collection of a special assessment upon property benefited; this liability being determined according to the various methods suggested in previous sections.903 In common with other local or special improvements, it should be executed in the manner, at the

902 Burnham v. City of Chicago, 24 Ill. 496; Lightner v. City of Peoria, 150 Ill. 80; English v. City of Danville, 150 Ill. 92; Warren v. Henly, 31 Iowa, 31; In re Phillips, 60 N. Y. 16. The court in this case say that "to pave is to cover with stones or brick or other suitable material so as to make a level or convenient surface for horses, carriages or foot passengers." Schenley v. Com., 36 Pa. 29; City of Philadelphia v. Hill, 166 Pa. 211. Where a city council authorizes upon a public street repairs to be made of a reasonably permanent character at the expense of the city, it is not an original paving. Dick v. City of Philadelphia, 197 Pa. 467.

903 Bacon v. City of Savannah, 86 Ga. 301; Shank v. Smith, 157 Ind. 401, 61 N. E. 932, 55 L. R. A. 564; warren v. Henly, 31 Iowa, 31; Trustees of Paris v. Berry, 25 Ky. (2 J. J. Marsh.) 483; McGuinn v. Peri, 16 La. Ann. 326; City of New Orleans v. Stewart, 18 La. Ann. 710; Goodwillie v. City of Detroit, 103 Mich. 283, 61 N. W. 526, construing Detroit city charter relative to the liability of property owners for the cost of repaving streets. Dickinson v. City of Detroit, 111 Mich. 480, 69 N. W. 728, construing charter provisions of City of Detroit relative to liability of abutting owners for cost or repaving. Traders' Bank v. Payne, 31 Mo. App. 512; Jelliff

904

v. City of Newark, 49 N. J. Law, 239, 12 Atl. 770; Tappan v. Long Branch Police Sanitary & Imp. Commission, 59 N. J. Law, 371, 35 Atl. 1070.

O'Reilly v. City of Kingston, 39 Hun (N. Y.) 285; In re Grube, 81 N. Y. 139, defining a "repavement" within New York laws 1874, c. 476. See, also, In re Brady, 85 N. Y. 268, as defining what constitutes a "prior pavement," and In re Fulton St. 29 How. Pr. (N. Y.) 429, as distinguishing between a "repaving" and the "repair" of a street.

City of Schenectady v. Trustees of Union College, 144 N. Y. 241, 26 L. R. A. 614; City of Philadelphia v. Dibeler, 147 Pa. 261, 23 Atl. 567, defining “original paving."

City of Harrisburg v. Baptist, 156 Pa. 526; City of Philadelphia V. Bowman, 166 Pa. 393; Reuting v. City of Titusville, 175 Pa. 512; Adams v. Fisher, 75 Tex. 657, 6 S. W. 772. The determination of a city council having the power to order a pavement of a street, that such an improvement is necessary and beneficial is conclusive. Sands v. City of Richmond, 31 Grat. (Va.) 571; City of Parkersburg v. Tavenner, 42 W. Va. 486. See §§, supra, 337 et seq.

904 City of Springfield v. Green, 120 Ill. 269, 11 N. E. 261; Adams County v. City of Quincy, 130 Ill. 566, 22 N. E. 624. Where the power to direct the paving of a street is

time and place, 905 and according to,906 in all respects, the terms of the authority necessary907 and under which it is done, whether conferred, an ordinance providing use of a less width than thirty feet.' for the paving of a particular street need not state its width. Schmitt v. City of New Orleans, 48 La. Ann. 1440; Common Council of Grand Rapids v. Public Works of Grand Rapids, 99 Mich. 392, 58 N. W. 335; City of Harrisburg v. Segelbaum, 151 Pa. 172, 20 L. R. A. 834, and Boyer v. City of Reading, 151 Pa. 185, hold that "macadamizing" is a species of paving coming within the rule that streets after having been paved cannot be repaved at the expense of abutting property owners. See, also, as holding the same principle, Hammett v. City of Philadelphia, 65 Pa. 146, and City of Philadelphia v. Ehret, 153 Pa. 1.

905 Johnson v. District of Columbia, 6 Mackey (D. C.) 21; Winfrey v. Linger, 89 Mo. App. 159; In re Murphy, 20 Hun (N. Y.) 346; City of Philadelphia v. Ball, 147 Pa. 243, 23 Atl. 564. A street not legally laid out or dedicated to public use cannot be paved by the public authorities. The court says: "The said street from Main street to the end of defendant's property is laid down on the authorized city plans as a street thirty feet wide. The ordinance of October 12, 1885, under the provisions of which the said paving was alleged to have been done provided that the said Center street should be first dedicated or properly opened. This is the precise language of the ordinance. does not appear that the said street from Main street to the end of the defendant's property has ever been opened. The ordinance of May 3rd, 1855, provides that hereafter no street shall be accepted for public

It

We do not understand this ordinance to have been repealed. Center street where it touches defendant's property is of a less width than thirty feet, and does not appear to have been accepted for public use by the city of Philadelphia. The city ordinance only authorized the paving of the street after it should have been dedicated or properly opened. These prerequisites not having been complied with we are unable to see any authority for paving it at the expense of the abutting property owners." City of Philadelphia v. Evans, 139 Pa. 483.

906 Olsson v. City of Topeka, 42 Kan. 709, 21 Pac. 219, following Blair v. City of Atchison, 40 Kan. 353, 19 Pac. 815.

Barber Asphalt Pav. Co. v. Gogreve, 41 La. Ann. 251; Galbreath v. Newton, 30 Mo. App. 380; Saxton v. Beach, 50 Mo. 488; In re Sharp, 56 N. Y. 257; McAllister v. City of Tacoma, 9 Wash. 272.

907 State v. Ramsey County Dist. Ct., 33 Minn. 164. "Under the provisions of the charter of the City of St. Paul regulating proceedings for improving streets after the matter of a proposed improvement has been referred by the council to the board of public works, and the board have reported, recommending the improvement, sending with their report a plan or profile of the work to be done, the report, plan or profile and the order of the council to the board to do the work must ordinarily be construed together to determine whether the work done is authorized by the order."

the authority be special or general in its application and terms. The extent of discretion vested in public officials with respect to the manner of executing this particular power depends upon the language of the grant,908 and such authority must necessarily be constitutional and otherwise legal.909

908 Alameda Macadamizing Co. v. Williams, 70 Cal. 534; Cram v. City of Chicago, 138 Ill. 506; Gunning Gravel & Pav. Co. v. City of New Orleans, 45 La. Ann. 911, 13 So. 182; Moale v. City of Baltimore, 61 Md. 224; Alberger v. City of Baltimore, 64 Md. 1. A city having been granted the power in general terms to provide for paving and repaving its streets, a determination of the necessity for paving a particular street will not be reviewed by the courts.

City of Detroit v. Michigan Pav. Co., 36 Mich. 335; Shimmons v. City of Saginaw, 104 Mich. 511, 62 N. W. 725. The question of the necessity for repaving a street is with the city council and not open to review or collateral attack except in cases of fraud. Fuller v. City of Grand Rapids, 105 Mich. 529, 63 N. W. 530.

Ruggles v. Collier, 43 Mo. 353. The power to determine the manner of paving and repaving streets requires the city council of St. Louis to act in its legislative capacity. The rule holds that a power to act in such a capacity cannot be delegated. McCormack v. Patchin, 53 Mo. 33, construing the provisions of the St. Louis charter of 1867. Ritterskamp v. Stifel, 59 Mo. App.

510. Under the power as granted a state to reconstruct its streets and alleys and also repair them, the determination of the character of a particular work, whether to repair a street or its reconstruction, is not conclusive. An arbitrary decision

in this respect cannot establish the character of the work as that of a particular kind.

Shoenberg v. Field, 95 Mo. App. 241, 68 S. W. 945. Where a city charter provides that the right shall be let to the lowest bidder, the board of public works have no power to limit paving material to that. manufactured by only a single company.

Verdin v. City of St. Louis (Mo.) 27 S. W. 447. A paving material in the sale of which there is a monopoly may be selected by the board of public works having the exclusive right to select the material for street improvements. In such event they are also vested with the power to reject an exorbitant bid by the firm controlling the sale of the material.

City of Schenectady v. Trustees of Union College, 66 Hun, 179, 21 N. Y. Supp. 147; Kittinger v. City of Buffalo, 148 N. Y. 332; Beaumont v. City of Wilkes-Barre, 142 Pa. 198, 21 Atl. 888; Pepper v. City of Philadelphia, 114 Pa. 96. A contract for paving within the powers of the city council though injudiciously made can be enforced. City of Philadelphia v. Evans, 139 Pa. 483; City of Philadelphia v. Baker, 140 Pa. 11.

Roundtree v. City of Galveston, 42 Tex. 612, construing charter provisions of the city of Galveston relative to the power of the city council to pave streets. See, also, Wood v. City of Galveston, 76 Tex. 126.

909 Tuttle v. Polk, 92 Iowa, 433, 60>

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