§ 812. Definition of grade. The compensation that can be recovered is based upon a change of the lawful grade and this proposition naturally leads to the definition of a grade. In this respect the cases are not uniform; some hold that to constitute a lawful grade, the change of which will lead to a recovery of the compensation permitted by statute, the gradient of the street must have been established by official action according to the rules prescribed by local charters or general statutes." 596 Other cases maintain that official action establishing a grade may not be necessary so long as the street has been maintained and improved upon either a natural grade or one on which the street has been improved or repaired." 597 A change of grade. A change, therefore, will depend upon the manner in which the grade may have been established; if official action is necessary to establish a grade, action of the same character is necessary to make a change of grade that can be the basis of a recovery of damages. 598 If statutory or charter provisions Walish v City of Milwaukee, 95 See, also, cases generally collected in 35 Am. & Eng. Corp. Cases. Lewis, Eminent Domain, (2d. Ed.) §§ 206b, et seq. 596 Dorland v. Bergson, 78 Cal. 637, 21 Pac. 537; Gardiner v. Town of Johnston, 16 R. I. 94, 12 Atl. 888. 597 McGar v. Borough of Bristol, 71 Conn. 652, 42 Atl. 1000. The term "grade" as used in Gen. St. § 2703, relative to a change of grade does not signify a level precisely or officially established upon the surface of the highway as it in fact exists. Allen v. City of Davenport, 107 Iowa, 90; Davis v. Missouri Pac. R. Co., 119 Mo. 180; Hickman v. Kansas City, 120 Mo. 110, 23 L. R. A. 658; Smith v. City of St. Louis, 122 Mo. 643; Bartlett v. Village of Tarrytown, 55 Hun, 492, 8 N. Y. Supp. 739; Niver v. Village of Bath-on-the-Hudson, 27 Misc. 605, 58 N. Y. Supp. 270; Bor ough of New Brighton v. United Presbyterian Church, 96 Pa. 331. 598 Moore v. City of Atlanta, 70 Ga. 611; Keehn v. McGillicuddy, 15 Ind. App. 580; City of Valparaiso v. Adams, 123 Ind. 250, 24 N. E. 107; Kepple v. City of Keokuk, 61 Iowa, 653; Farmer V. City of Cedar Rapids, 116 Iowa, 322, 89 N. W. 1105; Bogard v. O'Brien, 14 Ky. L. R. 648, 20 S. W. 1097; Albro V. City of Fall River, 175 Mass. 590, 56 N. E. 894; Lane v. City of Boston, 125 Mass. 519; Viscardi v. Inhabitants of Great Barrington, 174 Mass. 406, 54 N. E. 859; Rakowsky v. City of Duluth, 44 Minn. 188, 46 N. W. 338; Gehling v. City of St. Joseph, 49 Mo. App. 430; Maudlin v. City of Trenton, 67 Mo. App. 452; Stuebner v. City of St. Joseph, 81 Mo. App. 273; Hall v. City of Trenton, 86 Mo. App. 326; Kroffe v. City of Springfield, 86 Mo. App. 530; McGavock v. City of Omaha, 40 Neb. 64, 58 N. W. 543; Kearney do not require this action, a determination by the proper officials for a change in the physical grade of the street, whether natural or otherwise, and the consequent affecting of its gradient to conform to the new line established is sufficient.599 § 813. Damages recoverable. Statutory or charter provisions may be the basis of the right to compensation on the part of the abutting owner for a change of grade. As already stated, the owner's right when based upon this will be limited in its extent and the manner of recovery where it v. Andrews, 10 N. J. Eq. (2 Stockt.) 70; Vanderbeck v. Ridgewood Tp., 50 N. J. Law, 514, 14 Atl. 598; State v. City of Rutherfort, 52 N. J. Law, 499, 19 Atl. 972; State v. City of Bayonne, 54 N. J. Law, 293, 23 Atl. 648; Brineley v. Inhabitants of Perth Amboy, 29 N. J. Law, 259; Collins v. Langan, 58 N. J. Law, 6, 32 Atl. 258. Vanatta v. Town of Morristown, 34 N. J. Law, 445. Reasonable notice must be given of the passage of a city ordinance directing the change of grade so that persons affected may have an opportunity to be heard. Heiser v. City of New York, 104 N. Y. 68. A statutory provision providing a mode of compensation to persons injured by public improvements is exclusive. Folmsbee v. City of Amsterdam, 142 N. Y. 118, 36 N. E. 821; Lewis v. Borough of Homestead, 194 Pa. 199, 45 Atl. 123; Aldrich v. City of Providence, 12 R. I. 241; Sargent v. City of Tacoma, 10 Wash. 212, 38 Pac. 1048. A change of grade, however accomplished, will result in a liability to the abutting property owner for damages. Meinzer v. City of Racine, 74 Wis. 166, 42 N. W. 230. 599 City of Huntington v. Griffith, 142 Ind. 280, 41 N. E. 8, 589; Luse v. City of Des Moines, 22 Iowa, 590. An averment that the defendant "fixed and established a grade as it was lawfully authorized to do," is sufficient. Ressegieu v. Sioux City, 94 Iowa, 543, 63 N. W. 184, 28 L. R. A. 389; Millard v. Webster City, 113 Iowa, 220, 84 N. W. 1044; Davis v. Missouri Pac. R. Co. 119 Mo. 180, 24 S. W. 777; Smith v. City of St. Joseph, 122 Mo. 643, 27 S. W. 344; Imler v. City of Springfield, 30 Mo. App. 669; Cole v. City of St. Louis, 132 Mo. 633, 34 S. W. 469; Taylor v. City of Jackson, 83 Mo. App. 641; City of Harvard v. Crouch, 47 Neb. 133, 66 N. W. 276; In re Greer, 39 App. Div. 22, 56 N. Y. Supp. 938; Whitmore v. Village of Tarrytown, 137 N. Y. 409, 33 N. E. 489. Evidence considered and held not a change or alteration of the street. grade within the meaning of the statute. Borough of New Brighton v. Piersol, 107 Pa. 280; O'Brien v. City of Philadelphia, 150 Pa. 589, 24 Atl. 1047; Hobson v. City of Philadelphia, 150 Pa. 595, 24 Atl. 1048; City of Chattanooga v. Geiler, 81 Tenn. (13 Lea) 611; City of Ft. Worth v. Howard, 3 Tex. Civ. App. 537, 22 S. W. 1059; Blair v. City 601 is prescribed.600 Generally speaking, the principles applicable to the recovery of damages as discussed and stated in those sections. relating to the taking of property under the power of eminent domain will control and these will constitute the measure of damages. The rule is also true that an abutting property owner can. not recover for a general depreciation of property which may have been suffered by the change of grade and must rely upon the special damages that his property has sustained. 602 An interference with access to his property 603 resulting in a loss of business or in of Charlestown, 43 W. Va. 62, 26 S. E. 341, 35 L. R. A. 852. 600 See §§ 810, 811, ante. 601 Healey v. City of New Haven, 49 Conn. 394; New Haven Steam Saw Mill Co. v. City of New Haven, 72 Conn. 276, 44 Atl. 229, 609. Interest from the time that damages are liquidated is a proper element of damage. Sanitary Dist. of Chicago v. McGuirl, 86 Ill. App. 392; Natick Gaslight Co. v. Inhiabitants of Natick, 175 Mass. 246, 56 N. E. 292. A gas company is not entitled to any damages resulting from the laying out of its pipes, made necessary by the change in the grade of a street. Moritz v. City of St. Paul, 52 Minn. 409, 54 N. W. 370; Hampton v. Kansas City, 74 Mo. App. 129. Damages should be estimated from the time of the injury and interest may be added from that time. In re Caffrey, 52 App. Div. 264, 65 N. Y. Supp. 470. See §§ 743 et seq., ante. 602 Reardon v. City and County of San Francisco, 66 Cal. 492; Eachus v. Los Angeles Consol. Elec. R. Co., 103 Cal. 614. There can be a recovery only for an actual physical change of grade. Pause v. City of Atlanta, 98 Ga. 92, 26 S. E. 489; City of Lafayette v. Nagle, 113 Ind. 425, 15 N. E. 1; City of Topeka v. Martineau, 42 Kan. 387, 22 Pac. 419, 5 L. R. A. 775; City of Leavenworth v. Duffy, 10 Kan. App. 124, 62 Pac. 433; Town of West Covington v. Schultz, 16 Ky. L. R. 831, 30 S. W. 410; City of Louisville v. Coleburne, 22 Ky. L. R. 64, 56 S. W. 681; Offutt v. Montgomery County Com'rs, 94 Md. 115, 50 Atl. 419; Davenport v. Inhabitants of Dedham, 178 Mass. 382, 59 N. E. 1029. No damages can be recovered where the only injury is occasioned by the fact that the change in the grade of a street renders it less convenient for use than it was before. Davenport v. Inhabitants of Hyde Park, 178 Mass. 385, 59 N. E. 1030; Dana v. City of Boston, 176 Mass. 97, 57 N. E. 325; Keil v. City of St. Paul, 47 Minn. 288, 50 N. W. 83; In re Grade Crossing Com'rs, of Buffalo, 166 N. Y. 69, 59 N. E. 706, Id., 17 App. Div. 54, 44 N. Y. Supp. 844; Smith V. Wayne County Com'rs, 50 Ohio St. 628, 35 N. E. 796. 603 Hohmann v. City of Chicago, 140 III. 226, 29 N. E. 671. The desertion of customers from a saloon is not an element of damage for which one can recover damages caused by the construction of a viaduct. Tinker v. City of Rockford, (Ill.) 28 N. E. 573; City of Chicago v. Atlgeld, 33 Ill. App. 23. The plaintiff in an action to recover for damages caused by a change of convenience, an increased liability to the action of surface water,604 and other special injuries of a similar character, will form the basis of proceedings under the statute by him.605 grade must show that he was the owner thereof at the time the injury was done. Marshall v. City of Chicago, 77 Ill. App. 351; City of Chicago v. Jackson, 88 Ill. App. 130; City of Joliet v. Bower, 155 Ill. 414, 40 N. E. 619, reversing 49 Ill. App. 464. A city changing the grade of a street is liable to the owners of all property damaged by the change whether abutting or otherwise. McCash v. City of Burlington, 72 Iowa, 26, 33 N. W. 346; Morton v. City of Burlington, 106 Iowa, 50, 75 N. W. 662; Denise v. City of Omaha, 49 Neb. 750, 69 N. W. 119; City of Omaha v. Flood, 57 Neb. 124, 77 N. W. 379. But see Hubbard v. Inhabitants of Webster, 118 Mass. 509; Jordan v. City of Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 519. C04 City of Montgomery v. Maddox, 89 Ala. 181, 7 So. 433; Town of Avondale V. McFarland, 101 Ala. 81, 1. So. 504, overruling City of Montgomery v. Townsend, 80 Ala. 489; Conniff v. City and County of San Francisco, 67 Cal. 45; Sison v. Town of Stonington, 73 Conn. 348, 47 Atl. 662; City of Springfield v. Griffith, 46 Ill. App. 246; City of Mt. Sterling v. Jephson, 21 Ky. L. R. 1028, 53 S. W. 1046; Woodbury v. Inhabitants of Beverly, 153 Mass. 245, 26 N. E. 851; Carl v. Village of Northport, 11 App. Div. 120, 42 N. Y. Supp. 576; Inman v. Tripp, 11 R. I. 520; McCray v. Town of Fairmont, 46 W. Va. 442, 33 S. E. 245; Addy v. City of Janesville, 70 Wis. 401, 35 N. W. 931; But see Magarity V. City of Wilmington, 5 Houst. (Del.) 530; Stewart V. Clinton, 79 Mo. 603; Yeager v. Town of Fairmont, 43 W. Va. 259, 27 S. E. 234. There is no liability unless the surface water is collected in a body by reason of the change of grade and thrown upon the abutting lot. 605 Lehigh Valley Coal Co. V. City of Chicago, 25 Fed. 415; City of Chicago v. Baker, 86 Fed. 753, 30 C. C. A. 364; Shelton Co. v. Borough of Birmingham, 61 Conn. 518, 24 Atl. 978. The destruction of a cellar entrance from the sidewalk by a change of grade of a street is not an element of damage. Shelton Co. v. Borough of Birmingham, 62 Conn. 456. The value of a sidewalk previously constructed and which is destroyed by a change of grade can be properly included in the damages. Holley v. Town and Borough of Torrington, 63 Conn. 426, 28 Atl. 613. The destruction of a sidewalk and shade trees is properly considered in determining the damages caused by a change of grade. Cook v. City of Ansonia, 66 Conn. 413, 34 Atl. 183. The value of trees and sidewalk destroyed and cost of grading rendered necessary by a change of street grade are proper elements of damage. McGar v. Borough of Bristol, 71 Conn. 652; New Haven Steam Saw Mill Co. v. City of New Haven, 72 Conn. 288, 44 Atl. 233; City Council of Augusta v. Schrameck, 96 Ga. 426, 23 S. E. 400. The cost of filling in a lot and raising a building necessitated by a raise in the grade of the street is a proper element of damage. City of Joliet v. Adler, 71 Ill. App. 456. The rental value of property is not an element upon which to base damages for a change of street grade, but evidence of the appearance of the property as affected by the change of grade is relevant. City of Chicago v. Jackson, 88 Ill. App. 130. The expense of making a new sewer connection is allowable. Conklin v. City of Keokuk, 73 Iowa, 343, 35 N. W. 444; Richardson V. Webster City, 111 Iowa, 427, 82 N. W. 920. The destruction of shade trees, the cost of a retaining wall and increased difficulty of access, can be included. City of Ludlow v. Froste, 20 Ky. L. R. 216, 45 S. W. 661. The owner can recover for the destruction of fences and trees. City of Louisville v. Hegan, 20 Ky. L. R. 1532, 49 S. W. 532; City of Henderson v. Winstead, 22 Ky. L. R. 828, 58 S. W. 777; City of Louisville v. Harbin, 22 Ky. L. R. 1865, 61 S. W. 1011; Chase v. City of Portland, 86 Me. 367, 29 Atl. 1104; Chase v. City of Worcester, 108 Mass. 60; Hartshorn v. Worcester County, 113 Mass. 111. Buell v. Worcester County, 119 Mass. 372. The expenses a prudent man would incur in putting property in as good a condition as it was before with reference to grade, is a proper element of damages caused by a change of grade in a street. Bemis v. City of Springfield, 122 Mass. 110; City of Grand Rapids v. Luce, 92 Mich. 92; Walker v. City of Sedalia, 74 Mo. App. 70. The destruction of shade trees is properly considered as an element of damages. Watson v. City of Columbia, 77 Mo. App. 267. The expenses of a former change of grade not allowed. Stanwood v. City of Omaha, 38 Neb. 552, 57 N. W. 287; City of Omaha v. Williams, 52 Neb. 40, 71 N. W. 970. One who purchases property on the street where the grade is established must improve his property with reference to such grade. People v. Lord, 31 App. Div. 221, 52 N. Y. Supp. 568. A widow with two minor children cannot be awarded the damages based upon the entire fee. Sauer v. City of New York, 44 App. Div. 305, 60 N. Y. Supp. 648. Evidence relative to the profits of a business prior to the construction of a viaduct and losses sustained thereafter is incompetent, being too speculative. Seaman v. Borough of Washington, 172 Pa. 467, 33 Atl. 756; Groff v. City of Philadelphia, 150 Pa. 594, 24 Atl. 1048. A city is not liable for damages to a house rented on a lot after the change in grade was authorized. Lawrence v. City of Philadelphia, 154 Pa. 20, 25 Atl. 1079. Damages can only be recovered for injuries to lots abutting on the street the grade of which is changed. See, also, Mellor v. City of Phildelphia, 160 Pa. 614. In re Tucker & Frankford Streets, 166 Pa. 366, 31 Atl. 117. The increased cost of delivering freight to a railroad caused by a change in the grade of a street occupied by tracks is not a proper element of damage. Ridge Ave. Pass. R. Co. v. City of Philadelphia, |