Smith v. City of Los Angeles — 136 Cal. 156

Majority

p. 156

[L. A. No. 929.

Department Two.

March 27, 1902.]

MARY A. P. SMITH et al., Respondents, v. CITY OF LOS ANGELES et al., Appellants.

Headnote

Municipal Corporations—Excavation in Street—Damages.—A municipal corporation is liable for damages caused to the land adjoining a street from an unlawful excavation made in the street at its instance and under its.authorization. The evidence in this case is sufficient to warrant a finding that the excavation was authorized by the municipality.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Lucien Shaw, Judge.

The facts are stated in the opinion of the court.

Walter F. Haas, for Appellants.

J. S. Chapman, and Ward Chapman, for Respondents.

This action was brought to recover four thousand dollars’ damages for injuries to plaintiffs’ land caused by an excavation made in the street adjoining the land. The court below, sitting without a jury, found the damages to be seven hundred and fifty dollars, and rendered judgment for plaintiffs in that amount. Defendants appeal from the judgment and from an order denying their motion for a new trial.

It is conceded that the excavation in question damaged the land and constituted a legal injury to the respondents; and we are satisfied that the amount of damages found by the court was fully warranted by the evidence. But it is contended by appellants that the city was not so connected with the acts complained of as to make it legally liable for the damage.

Sand Street in the city of Los Angeles crosses the street called Broadway; and respondents’ lot of land in question is on the northwest corner of the intersection of said streets. Before the occurrences involved here the two streets had been graded to the official grade, and the grade of Sand Street was about forty feet lower than that of Broadway, so that on the north side of the former street where it crosses the latter there was a bank nearly perpendicular of about forty feet in depth. In May, 1895, certain persons, against the objection and protest of respondents, excavated and removed a portion of Broadway from the north line of Sand Street. This excavation extended below the official grade of Broadway, along the east line of respondents’ lot about twenty feet, and was about forty feet deep. It thus left an almost perpendicular bank nearly forty feet in depth from the level of the surface of respondents’ lot on Broadway to the bottom of the excavation, and thus caused the damage complained of. Immediately after the excavation was completed a stairway was made along it, by the express direction of the city council, in order to allow people to pass up over it from the lower grade of Sand Street to the upper grade of Broadway.

The court found that “the defendants, the city of Los Angeles, and Perry A. Howard, superintendent of streets of said city,” did this excavation above described; and “that the said work was done and the said excavation made without the consent of the plaintiffs, or either of them, and against their will, by the said street superintendent, under the authority

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and with the consent and at the instance of the said city of Los Angeles, and the said city paid the cost of said excavation.” If these findings are warranted by the evidence, they support the judgment, and make it unnecessary to consider much of the elaborate discussion of counsel about the liability of municipalities for damages for injuries to persons or property caused by acts of independent corporate officers, and not by acts of the corporation itself. It has never been held that the governmental authority of a city can, with immunity, commit a plain violation and invasion of the rights of the citizen by taking or damaging his land for street or other public purposes.

And we do not think that the above findings can be disturbed here on the ground of the insufficiency of the evidence to support them. Respondents introduced as their witnesses the superintendent of streets, Howard, and his deputy, Hutton; and appellants rely mainly upon matters brought out on the cross-examination of these witnesses. Their contention is, that the excavation was made by the superintendent entirely on his own motion, and without any direction, co-operation, or knowledge of the city council. On the cross-examination of Hutton, under whose immediate supervision the work was done, his main testimony on this point was as follows: “Mr. Howard instructed me to go there and see whether,” etc.; and, further: “I did n’t have any other instructions. I did n’t have any instructions from the city council or from any other officials.” But on Howard’s examination he was very doubtful as to what the city council did in the matter. He said: “I don’t think that I referred the matter to the city council in any way. I don’t remember receiving any instructions of any kind from the city council; if I did, it would be a matter of record, as I keep all of their instructions on file; I have no recollection of the matter. ... I have no recollection in regard to a report being made to the board of public works for the building of the stairway and stated to the council that it would require an additional excavation to be made in that street.” He was asked by his counsel if he had made any special report of the excavation to the-city council after it was done, and he answered, “I think not.”

But it appears from the records of the city council, introduced by respondents, that on March 28, 1895, the board of

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public works made a report to the city council, in which they “recommend that the steps be placed at Broadway and Sand Street leading from the grade from Broadway to the top of the embankment, for the purpose of making the street passable for pedestrians at that point, and that the superintendent of buildings present specifications with an estimate of cost thereof, which report was adopted.” It appears further from these records that on April 22, 1895, “the superintendent of buildings reported on that day: I have the honor to present specifications and estimate of cost of constructing steps on Broadway and Sand Street. The steps are to be eight feet wide, made with easy grade and a landing for every fifteen steps, with suitable railings and supports. And building these steps will require additional excavation, which will probably be done to the best advantage by the superintendent of streets. The construction and completion of the steps, after necessary excavations have been made, will cost $290. Which report was referred to the board of public works.” These records also show, under date of May 20, 1895, the following: “The board of public works of that date, in the matter of the construction of stairs at the intersection of Sand Street and Broadway, recommended that the street superintendent be authorized to contract with George F. Brown to construct the same at a cost not to exceed seventy-five dollars; stairs to be four feet wide in the clear. Which report was adopted by the following vote.” The excavation complained of was made in May, 1895, commencing in the early part of that month. Now, the records above quoted refer tp the general subject of the excavation and stairway; they commence on March 28th—a few weeks before the excavation was begun; on April 22d, a little more than a week before the commencement of the work, they refer to the necessity of “additional excavation which will probably be done to the best advantage by the superintendent of streets”; and they close on May 20th, just about the time the excavation was completed so as to admit of the construction of the stairway,—at which time a contract' for the stairway was ordered. It is within the range of possibility that all these things shown by the records were merely remarkable coincidences occurring without any knowledge of or reference to the other contemporaneous facts, and entirely unconnected, in contemplation and intent, with the other mere

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coincidence,—the excavation; bnt we cannot hold here that the court below should have so treated them. Considering the evidence above noticed, as well as other general features of the case, we are unable to say that, as a matter of law, the evidence was too slight or too free from conflict to warrant the findings of the court.

There were a few objections to rulings on the admissibility of evidence; but they were of little importance, and it is sufficient to say that we .see no error in the rulings excepted to.

The respondents were entitled to judgment against both appellants; both were guilty of the unlawful act, and neither presented any valid defense.

The judgment and order appealed from are affirmed.

Henshaw, J., and Temple, J., concurred.