Smith v. Corporation of Washington.

That if they find that the said defendants caused the pavement in front of said plaintiff's house to be taken up, and said sidewalk to be regraded and the pavement relaid, that then the taking up the same, and regrading and relaying the same, under the acts of August 21, 1851, and 12th of September, 1851, without making compensation for the damages the said plaintiff might sustain thereby, was unauthorized and unlawful, and that said defendants are liable to the plaintiff for the damages sustained thereby. [Refused.]

That under the act of Congress authorizing said defendants to open streets, when they have once graded and opened the same, that they have no lawful authority, without the consent of the property holders injured thereby, and without making compensation for the damages sustained, to regrade so as to injure the value or the use of real estate when the said regrading is made; and that if they find said defendants have so regraded, they are liable to said plaintiff for all damages she has sustained by such regrading. [Refused.]

That if the jury find that the said street had been previously graded by the said corporation, that no changes by the action of the elements thereon, or by natural causes resulting from said grade, can authorize such regrading; and that if the said defendants regraded said streets on account of such changes, they are liable to said plaintiff for all damages which she sustained thereby. [Refused.]

That if the jury find that said street was graded and gravelled, in August, 1851, by said corporation, that without a change of circumstances, and the occurrence of a new and further necessity for a change in said grade, that then the regrade under the act of 12th of September, 1851, was unauthorized and unlawful, and the defendants are liable for such damages as the plaintiff may have sustained by said last-mentioned regrading. [Refused.]

That if the jury find that the defects in the street were such as were occasioned solely by a neglect in not preserving it in the condition in which it was left when first graded under the laws of 1830, 1831, and 1832, that then the defendants were not authorized to regrade said street under either of said acts of 1851, and that their doing so was illegal, and renders them liable for all damage growing out of such regrading resulting therefrom. [Refused by a divided court.]

That if the jury find that said street could have been restored to its condition, as established under the grading originally made, without cutting down said street and regrading it, that said defendants were bound so to restore it without regrading, and that such regrading was unauthorized and illegal, and ren

Smith v. Corporation of Washington.

ders the defendants liable for all damages sustained by the plaintiff resulting therefrom. [Refused.]

That if the jury believe that said defendants, in regrading said street in 1851, cut down said street lower than was necessary to restore the former grade, and render the said street equally passable, that such excess of cutting down was unauthorized and illegal, and the said defendants are liable to said plaintiff for all injury sustained by such excess of cutting down. [Refused.]

That if the jury find that in said regrading in 1851, the defendants cut down said K street in front of said plaintiff's premises so much as to render it necessary to regrade and cut down Twelfth street, and thereby render that portion of it north of said K street steeper and more difficult of passage than it formerly was; that such fact raises a presumption that said regrading, to the extent it took place, was unnecessary and improper, and unless such presumption is repelled by proof, that the said regrading was unauthorized, and renders the defendants liable to the plaintiff to the extent of the damages which she has sustained thereby. [Refused.]

That if the jury find that the fall between the north and south sides of K street in front of plaintiff's premises, by the first grading or first regrading, was not greater than that in one or more of the grades in the city of Washington made or suffered by the defendants in opening and grading said streets, that such fact will raise the presumption that said regrading was not a work of necessity, and was therefore illegal and unauthorized, and renders them liable to all such damages as the plaintiff sustained by such regrading. [Refused.]

That if the jury find that the north side of said K street in front of plaintiff's house was cut down so low as to turn the water from Thirteenth street from its natural course from north to south, from the high grounds at the north of said K street to the low grounds on I street, at the south, and make it run east to Twelfth street, that such fact is presumptive evidence that said street was cut down more on said north side than was necessary or proper, and that, unless disproved, it is conclusive against the defendants that they cut down there more than was necessary, and that they are liable to the plaintiff for all damage she has sustained thereby. [Refused.]

That if the jury believe that said K street, or any part thereof, where it crosses Twefth street, was left higher than said K street, and impassable for teams, or materially obstructed from the regrading in 1851 to the fall of 1854, or to other time, that such fact is presumptive evidence that said regrading was not necessary for the purposes, passing, and travel, on said K

Smith v. Corporation of Washington.

street, but that it was lowered below said Twelfth street at that point for some other purpose; and that, unless disproved, it renders said defendants liable to said plaintiff for all damage she may have sustained by so regrading. [Refused.]

That if the jury find that the lowering the north side of K street in front of said plaintiff's house, and the making a gutter there from Twelfth to Thirteenth street would have obviated the objection of the flow of the water across the street, and gullying the same, without regrading to the extent which said street was regraded, that then said defendants are liable to said plaintiff for all damages sustained by lowering the north side of said street more than was necessary to protect against said flow and injury. [Refused.]

That the statute of Congress authorizing said corporation to open and grade streets in said city, is not a continuing power, but, when once opened and graded, that such corporation is not authorized to regrade the same in a manner whereby private property is injured; and that if they do so, they are liable to those injured for all damages sustained thereby. [Refused.] The court having refused to give said instructions, the plaintiff's counsel excepted.

The defendants' counsel thereupon asked the said court to give the following instructions:

And thereupon the said plaintiff's counsel, insisting before the jury that the said change of grade was not made by defendants bona fide, the defendants now pray the court further to instruct the jury that the defendants cannot be made responsible in damages in this action, unless from the evidence the jury shall find that the said change was made wantonly, wilfully, and maliciously; which instruction the court gave as prayed.

Whereupon the plaintiff, by her counsel, excepted, and prays the court to sign and seal this her bill of exceptions, this 23d day of May, 1856.

And the said court thereupon gave said instructions, and the counsel for the plaintiff excepted.

And thereupon the said jury, under the said ruling of the court, found a verdict for the defendants.

Upon these various rulings and refusals, the case came up to this court.

It was argued by Mr. Gillet and Mr. Cushing for the plaintiff in error, and Mr. Carlisle for the defendants.

The points made by the counsel for the plaintiff in error were the following, viz:

Smith v. Corporation of Washington.

FIRST.-The plaintiff had a right to give evidence tending to question the bona fides of the defendants in making the regrades.

One of the tests of good faith in making the said regrades was to compare their acts in question with other acts upon a like subject. If the defendants acted in good faith, they would deal with the people in Franklin Row as they did with those in other parts of the city. The defendants had offered proof that the first grade of K street, in front of plaintiff's house, was steep. Thereupon, the plaintiff offered to prove that it was not as steep as other grades which the corporation had fixed in other parts of the city. This evidence was objected to by the defendants, and rejected by the court, and the plaintif excepted.

This evidence clearly tended to show, if it was not conclusive, that the defendants applied a different rule in other parts of the city from that which they enforced upon the plaintiff. The evidence offered raised a presumption against the defendants, and it rested with them to repel it by other evidence, if they could. It prejudiced the plaintiff to reject it altogether, and therefore the exception ought to be sustained.

SECOND. That the first establishment of a grade raises a presumption that such grade was the proper one; and to justify a change, the defendants were bound to show a change of circumstances, and the occurrence of a new and further necessity, to justify a regrading.

After the grading in 1831 or 1832, which was proved to be a proper grade, by the acts of the defendants as well as by witnesses, it was incumbent upon the defendants to show some reason for a regrade, other than their neglect in letting the street get out of repair. They offered none of a material character. They ordered the regrade by the act of August 11th, 1851, without any substantial or plausible reason. It was the exer

cise of power without any reasonable cause.

The regrading under the act of the 12th of September, 1851, is wholly without a pretence of excuse. They had fixed the grade and gravelled the street; neither the elements nor any other cause had changed it, or proved it unsuitable. There was no change of circumstances, and no occurrence of any new or further necessity for a change of what they had made as good and sufficient. It was a wanton exercise of power, without any assignable good motive. It laid the foundation for the assumption that the defendants did not act in good faith. It raised that presumption, and it rested with them to repel it, which they did not attempt.

THIRD.-The payment of damages to a portion of those injured residing in Franklin Row, authorized the presumption that the defendants did not act in good faith.

Smith v. Corporation of Washington.

The defendants, as a corporation, derive their powers under the seventh and eighth sections of the act of 1820. (3 U. S. S., 586, 587.) There is no power conferred upon them to make gratuities; to do so would be a wanton violation of duty. They cannot assume that they thus acted in paying Ratcliffe $425 towards his loss. This was an acknowledgment that they had acted wrongfully in the cutting down, and were liable for the injury. It was an admission that they acted without lawful cause, and had no legal justification, and raised a clear presumption against them, which they did not attempt to repel.

FOURTH.-The condition in which the defendants left the street for a long time, raised the presumption against the good faith of their

acts.

Mr. Ratcliffe testified, that "after the defendants cut down the street, we were left in the mud a year or so." The fact of cutting down the street, and leaving it in the condition described, raises a presumption that it was not done to improve the street and make it more passable. It was incumbent upon the defendants to repel this presumption by proof.

FIFTH.-The court erred in instructing the jury that the plaintiff could not recover without proving that the change in the street was made "wantonly, wilfully, and maliciously."

In the first instruction prayed by the defendants, the court told the jury, as a matter of law, that if the defendants acted in good faith in the regrading, the plaintiff could not recover. The plaintiff had given evidence tending to show, unexplained, a want of good faith, and especially the order for the second regrading, within about a month after the first regrading, and her counsel commenced to sum up the facts before the jury, to show that the defendants did not act bona fide. Thereupon the defendants' counsel interrupted, and prayed a further instruction, as follows:

"And thereupon, the plaintiff's counsel insisting before the jury that the said grade was not made by the said defendants bona fide, the defendants now pray the court further to instruct the jury, that the defendants cannot be responsible in damages in this action, unless from the evidence the jury shall find that the said change was made wantonly, wilfully, and maliciously; which instruction the said court gave as prayed.'

To this there was an exception. The jury of course found, under this instruction, for the defendants.

a. Here was a change of ground by defendants during the trial, and one assumed under which the plaintiff could not be expected to prevail. It presented, in effect, a new issue, not raised by the plea of the "general issue.”