Kendall v. City Council , 74 S.C. 539 ( 1906 )

July 16, 1906. The opinion of the Court was delivered by This is an application to the Supreme Court in the exercise of its original and equitable jurisdiction for an order enjoining the defendant from changing the grade of Lady street, in the city of Columbia, upon which his building abuts.

The petition alleges that said building was erected many years ago with reference to the grade as it then existed; that the defendant is now altering and raising the grade line of the sidewalk, so that the same will be far above the floor and door-sills of said building; that unless the defendant is restrained the petitioner will suffer irreparable loss; and that he has no adequate remedy at law.

The defendant, in its return to the rule to show cause why it should not be enjoined, alleges certain facts for the purpose of showing the necessity for changing the grade of said street, and also alleges the following as a ground for refusing the said application:

"That under the charter of the city of Columbia the mayor and aldermen of the said city are vested with power to abate and remove all nuisances in the said city, and it is their duty to keep all roads, ways, bridges and streets within the corporate limits of the said city in good repair, and for that purpose they are vested with all the powers of county commissioners; and they are authorized to lay out new streets, close up, widen or otherwise alter those now in use, subject, however, to the two provisos contained in the first section of this act, to wit: `An act to alter and amend an act entitled an act to alter and amend the charter and extend the limits of the city of Columbia, approved February 26th, 1870,' which provides: `That in carrying out the first section of this act in extending the wards of the city of Columbia and in the extension of the streets thereof to the north and east to the northern and eastern boundaries, the said mayor and aldermen shall conform to the 23d section, of the 1st article of the Constitution of this State, now in force; and providedfurther, That the act of the General Assembly of this State, entitled an act to declare the manner in which the lands or right of way over the lands of persons or corporations may be taken for the construction and use of railways and other works of internal improvement, ratified on the 22d day of September, A.D. 1868, shall be in all respects followed and observed.'

"And defendant submits that the plaintiff, if entitled to any relief (which it denies), has a full, complete, adequate and exclusive remedy for the alleged acts complained of under the provisions of law above cited."

The principle is well settled in this State, that changing the grade of a street whereby the abutting owner sustains damages, does not fall within section 17, article I., of the Constitution, which provides that private property shall not be taken for public use without just compensation being first made therefor. Water Co. v. CityCouncil, 53 S.C. 82, 30 S.E., 699; Garraux v. City Council,53 S.C. 575, 31 S.C. 597. These decisions, however, show that damages may be recovered in cases not embraced within the provision of the Constitution. prohibiting the taking of private property without compensation, provided there is a statute to that effect.

The rule is likewise well settled, that when there is a statute which provides the manner in which damages are recoverable such remedy is exclusive. Garraux vs. City Council,53 S.C. 575, 31 S.E., 597.

If the statute to which reference is made in the return confers upon the petitioner the right to recover damages for altering the grade of the street, it likewise provides an adequate mode for determining the amount of such damages, and, as we have already stated, the remedy is exclusive. Therefore, the petitioner is not in a position to invoke the aid of the Court in the exercise of its equitable jurisdiction.

An order has already been filed carrying into effect the conclusion herein announced.