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arising from the change of grade, but not general benefits shared by the property owner in common with others in the community at large. Blair v. City of Charleston, 43 W. Va. 62 (26 S. E. Rep. 341; 64 Am. St. Rep. 837; 35 L. R. A. 852). See opinion for discussion of what constitutes "special benefits." In an action against a railroad company by an abutting owner to recover for injuries for a change of grade in a highway wrongfully occupied by it, the measure of damages is the consequent depreciation in the value of the plaintiff's property. Thompson v. Citizens' Traction Co., 181 Pa. St. 131 (37 Atl. Rep. 205). Speculative damages cannot be recovered by a base ball association having a leasehold interest in real estate, in an action brought by it against a city for damages on account of its changing the grade of a street. Philadelphia Ball Club v. City of Philadelphia, 182 Pa. St. 362 (38 Atl. Rep. 357).

Sec. 55. Change of "natural grade" of streetMunicipal liability. Applying W. Va. Const., art. 3, § 9, providing that "private property shall not be taken or damaged for public use without just compensation," it is held that a municipality is liable to an abutting owner for damages resulting from its changing the natural grade of a street. Blair v. City of Charleston, 43 W. Va. 62 (26 S. E. Rep. 341; 64 Am. St. Rep. 837; 35 L. R. A. 852). See opinion for exhaustive review of authorities. Construing S. Dak. Const., art. 6, § 13, providing that "private property shall not be taken for public use or damaged without just compensation," it is held that an abutting owner may recover damages resulting to his property on account of a municipality changing the "natural grade" of the street. Searle v. City of Lead, 10 S. Dak. 312 (73 N. W. Rep. 101; 39 L. R. A. 345). The court say: "The reports disclose many cases under the former system where streets were cut down or filled to such a depth as to render the property of the abutting owner comparatively worthless, and yet such owner was without remedy. In other words, the private property of such owner was, in effect, taken for the use or benefit of the public, without any compensation made to the owner. Most of these decisions were based largely upon the decision of the supreme court of Massa

chusetts in Callender v. Marsh, 1 Pick. 417, which was a street grade case, in which a deep cut had been made. But in that case the learned chief justice who wrote the opinion fully recognized the injustice of the old rule as applied to the facts in that case. He says: 'These are cases, without doubt, where the individual may suffer from the exercise of this power, and thus be made to contribute involuntarily much more than his proportion to the public convenience; but such cases seem not to be provided for, and must be left to that sense of justice which every community is to be governed by. Cases apparently hard will occur. The pre

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sent is such a one.'

But the framers of our organic law deemed it proper to fully protect the rights of the abutting property owner in the constitution itself, and not leave him to the sense of justice' by which a community is supposed to be governed. The framers of our organic law must be presumed to have been familiar with the provisions in the earlier state constitutions, and of the many cases in which private property had been, in effect, taken for public use, for which the property owner seemed to have no redress; and it is quite manifest that they inserted the term 'or damaged' for the express purpose and object of protecting private property from the arbitrary exercise of municipal or other corporate power. The constitutional provision is unquestionably a wise and just one, and well calculated to protect property owners from injustice and wrong on the part of municipal or other corporations or individuals invested with the privilege or taking private property for public use and should be given a liberal construction by the courts, in order to make it effectual in protecting the rights of the citizens. The words or damaged' were, without doubt, added to the usual provisions contained in earlier constitutions for the purpose of extending the remedy to incidental or consequential injuries to property, not actually taken for public use, in the ordinary acceptance of the term; and the same was adopted by the people with this express guaranty that just compensation should be made for property so taken or damaged for public use. And there is the further express guaranty that this compensation shall be paid before the proposed improvement can be made, or, in the language of the constitu

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tion, possession is taken.' The ascertainment and payment of damages that may be caused is a condition precedent to the right of the municipality to proceed. We are of the opinion, therefore, that, upon the facts stated in the complaint, the court below was authorized to make the order. The words 'or damaged' are found in the later constitutions of several of the states, among which are Illinois, Missouri, Nebraska, Pennsylvania, California and West Virginia; and the construction we have placed upon these words is fully sustained by the courts of these states. Werth v. City of Springfield, 78 Mo. 107; Reardon v. City & Co. of San Francisco, 66 Cal. 492 (6 Pac. Rep. 325); Blanchard v. City of Kansas, 16 Fed. Rep. 444; Harmon v. City of Omaha, 17 Neb. 548 (23 N. W. Rep. 503); Johnson v. Parkersburg, 16 W. Va. 402 (27 Am. Rep. 779); Chambers v. Railroad Co., 69 Ga. 320; McElroy v. Kansas City, 21 Fed. Rep. 257; Borough of New Brighton v. United Presbyterian Church, 96 Pa. St. 331; City of Chicago v. Taylor, 125 U. S. 161 (8 Sup. Ct. Rep. 820). The supreme court of Missouri, in the first case above cited, says: When property is damaged by establishing the grade of a street, or by raising or lowering the grade of a street previously established, it is a damage for public use within the meaning of the constitution.' In the case last above cited, the supreme court of the United States quotes from the supreme court of the state of Illinois in Railroad Co. v. Ayres, 106 Ill. 518, the following: 'It is needless to say that our decisions have not been harmonious on this question; but in the case of Rigney v. City of Chicago, 102 Ill. 64, there was a full review of the decisions of our courts, as well as the courts of Great Britain, under a statute containing a provision similar to the provision of our constitution. The conclusion there reached was that, under this constitutional provision, a recovery may be had in all cases where private property has sustained a substantial damage by the making and using an improvement that is public in its character; 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 railroad or other improvement is the cause of the damage, though conse

quential, the party may recover. We regard that case as conclusive on this question.'"

Sec. 56. Vacation of street or highway. Only owners of property abutting upon a street can recover damages for its vacation. Symons v. City & Co. of San Francisco, 115. Cal. 555 (47 Pac. Rep. 453). The court say: "Owners of other realty have no such property in a street as entitles them to damages for its vacation. Whatever detriment or inconvenience they may suffer by the closing of the street they bear in common with the community at large, for the public convenience and welfare, as decreed by the proper legislative authorities in ordering the vacation. Coster v. Mayor, etc., 43 N. Y. 414; Insurance Co. v. Stevens, 101 N. Y. 411 (5 N. E. Rep. 858); Smith v. City of Boston, 7 Cush. 254; Castle v. County of Berkshire, 11 Gray 26; City of East St. Louis v. O'Flynn, 119 Ill. 200 (10 N. E. Rep. 395; 59 Am. Rep. 795); Heller v. Railroad Co., 28 Kan. 625; Kimball v. Homan, 74 Mich. 699 (42 N. W. Rep. 167)." In Montana it is held that in the absence of a statute giving them such a right the owners of land along and through which a public road runs are not entitled to damages on vacation of the road by the proper authorities. State v. Board of Com'rs, 19 Mont. 582 (49 Pac. Rep. 147). Citing, Brady v. Shinkle, 40 Ia. 576. Upon this subject, see Ballards' Law of Real Property, Vol. III. §§ 3-7. Where the vacation of a portion of a street operates to leave the remainder a cul de sac, abutting owners thereon, the value of whose property is lessensed by the vacation, are entitled to recover damages under Pa. Act., April 21, 1858, § 6 (Pa. Laws, p. 386), giving the right to recover for injury to private property by the vacation of a street. In re Vacation of Part of Melon St., 182 Pa. St. 397 (38 Atl. Rep. 482; 38 L. R. A. 275). Where a street designated on the original plat of a town site located on public lands of the United States, and entered and platted by the probate judge for the benefit of the occupants (so that the title to the streets passed from the government of the United States, through the probate judge, to the county), is afterwards vacated, the title to the land included in the street vests in the lot owners on each side in equal parts; and this is the case where the vacated street is all included within

the original town site, and the lots on one side are in a different quarter section of land afterwards platted as an addition. Southern Kansas Ry Co. v. Showalter, 57 Kan. 681 (47 Pac. Rep. 831). Ia. Code 1873, §§ 564, 565, 567, providing that upon vacation of a street, a proportionate part thereof becomes a part of each of the abutting lots, does not apply to a vacation of a street by a landowner made after he has executed a plat of the lands, but before the street has been accepted by the proper authorities or any lands have been sold in reference thereto. Brown v. Taber, 103 Ia. 1 (72 N. W. Rep. 416).

Sec. 57. Assessments against abutting owners for municipal improvements-Constitutionality of frontage system of assessments. When empowered by its charter to do so, a city may make municipal assessments for improvements a personal charge against an abutting owner. Storrie v. Cortes, 90 Tex. 283 (38 S. W. Rep. 154; 35 L. R. A. 666). A statute which authorizes a municipality to assess the cost of paving a street and constructing a sewer against the abutting property owners is constitutional. City of Parkersburg v. Tavenner, 42 W. Va. 486 (26 S. E. Rep. 179). An assessment for municipal improvements grossly in excess of the value of the property will not be enforced. James v. City of Louisville, Ky. (40 S. W. Rep. 912). Where spe. cial taxes or assessments against property to improve the streets of a city are void, they cannot be enforced solely on the ground of the benefits of the improvements to the owners of the abutting lots or lands. Harmon v. City of Omaha, 53 Neb. 164 (73 N. W. Rep. 671). Citing, Buckley v. City of 7acoma, 9 Wash. 253 (37 Pac. Rep. 441). A conveyance of a narrow strip abutting on a street, executed and accepted by the grantee for the purpose of avoiding a street assessment upon the remaining property, is void. Eagle Mfg. Co. v. City of Davenport, 101 Ia. 493 (70 N. W. Rep. 707). A lien on abutting property for street improvements, authorized by art. 2, § 7, of the charter of the city of Covington, Ky., is held to be paramount to the lien of a mortgage taken after the charter was enacted but before the ordinance authorizing the improvements was passed. Dressman v. Farmers & Trad

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