unlawful perpetuity was created by authorizing an executor to delay partitioning the estate for five years, as the power of sale was not suspended. In this connection, see Van Brunt v. Van Brunt, 111 N. Y. 178. See extended note to Barnum v. Barnum, 90 Am. Dec. 101, discussing perpetuities, which are forbidden in the United States. See also note to Lawrence's Estate, 20 Am. St. Rep. 931.

O'BRIEN V. PHILADELPHIA.

[150 PENNSYLVANIA STATE, 589.]

MUNICIPAL CORPORATIONS- - DAMAGES FOR CHANGE IN GRADE OF STREET. A property owner who has built a house upon his lot in conformity with the existing physical grade of an old and open highway can recover damages from a city for depreciation in the value of the property, caused by changing the existing physical elevation of the highway in front of the lot to conform to a plan or regulation legally confirmed after the build. ing of the house, such plan being the first regulation of grade, and differing from the existing physical elevation of the old highway in front of the lot.

E. S. Miller and Charles B. McMichael, assistant city solicitors, and Charles F. Warwick, city solicitor, for the appellant.

Thomas Leaming and Henry C. Terry, for the appellee.

STERRETT, J. For many years prior to commencement of this suit, plaintiff owned a house and lot fronting on Haines Street, between Stenton Avenue and Limekiln Pike, now in the twenty-second ward of Philadelphia. Prior to 1761, what is now Haines Street was an old road. In that year a jury of view, appointed by the court of quarter sessions, reported said road, with courses, etc., but without any fixed grade, as a public highway, and in September of same year their report was duly confirmed by said court. Subsequently, the natural surface of the land on which the road was located was somewhat changed, and the grade of the road thereby improved. As a public highway, this road has been continuously traveled ever since, and, from time to time, detached dwellings, fronting upon it, have been erected. Meanwhile, the territory, on part of which the road was located, was absorbed by the city, and is now part of said ward. In 1871, more than a century after said road was recorded as a public highway, a plan of that section of the city embracing that part of said road now called Haines Street, on which plaintiff's property is located, was presented and confirmed. By that plan, a grade of the street, differing materially from the traveled

grade, was prescribed. This first-established paper grade called for raising Haines Street, opposite plaintiff's house, which was erected before said plan was confirmed.

In 1888, Haines Street was physically graded so as to conform to the grade established, as aforesaid, in 1871. By that act of the city the street opposite plaintiff's house was so raised as to leave his house considerably below the changed surface of the street. For the injury thus sustained by plaintiff this suit was brought, and a verdict rendered in his favor for $240, subject to the opinion of the court below on the following question of law reserved: "Whether a plaintiff who has built a house upon his lot in conformity with the existing physical grade of an old and open public highway can recover damages from the city of Philadelphia for depreciation in the value of the property, occasioned by changing the de facto physical elevation of the highway in front of the lot to conform to a plan regulation legally confirmed after the building of the house, said plan being the first regulation of grade, and differing from the de facto physical elevation of the old highway in front of the lot."

Defendant's motion for judgment in its favor, non obstante veredicto, was afterwards denied, and judgment for plaintiff was entered on the verdict. The sole question presented by the two specifications is, whether the court erred in denying defendant's motion, and entering judgment for plaintiff.

On the trial the evidence was directed to the difference in the value of plaintiff's property before and after the raising of the natural grade, as affected by that act. It was also agreed that no objection based on the form of action should be made. The only question before us, therefore, is that presented by the action of the court in entering judgment for the plaintiff on the verdict, etc., as above stated.

If any regard is to be had for the constitutional mandate that "municipal and other corporations . . . . shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements," we are at a loss to see how the learned judge could do otherwise than decide the reserved question as he did. Nobody conversant with the history of the constitutional provision above quoted can entertain any doubt that it was intended to provide, inter alia, for the class of cases of which O'Connor v. Pittsburgh, 18 Pa. St. 187, is a conspicuous example. It has uniformly been so regarded from the date

AM. ST. REP., VOL. XXX-63

of its adoption until the present time. It is a fact, conclusively established by the verdict, that, as a direct consequence of the elevation of grade immediately in front of plaintiff's property, its market value was lessened at least to the extent of $240; but it is gravely suggested that "such a damnum is not necessarily an injuria," and hence plaintiff is remediless. That principle has no application to the class of cases to which this belongs. To hold that it has would defeat one of the objects of the constitutional mandate in question, and virtually overrule several well-considered cases. We do not propose to do either. In New Brighton Borough v. United Presbyterian Church, 96 Pa. St. 331, it was contended that inasmuch as the proprietor of a borough had laid it out into lots and streets, and the borough had never fixed the grade of a par ticular street, it was not liable for damages for grading it the first time; but it was held that, under the constitutional provision above quoted, etc., owners of lots are to be compensated for damages resulting from changing the grade of a street, and that a change from the natural grade was such a change as entitled them to damages, if any were sustained thereby.

Again, in New Brighton Borough v. Peirsol, 107 Pa. St. 280, the claim was by a lot-owner for a second change of grade after he purchased the lot. This court, holding that he was entitled to recover, said: "The claim now is for change of grade, made since defendant in error purchased, and for dam ages sustained by work done since the adoption of the constitution."

In Ogden v. Philadelphia, 143 Pa. St. 430, the claim was for damages caused by grading North Street. After stating the undisputed facts were "that the first grade .... was established on the city plan in 1871, but nothing was done on the ground until 1887," our brother Mitchell says: "For the establishment of the grade of 1871 there was no right of action: O'Connor v. Pittsburgh, 18 Pa. St. 187; Philadelphia v. Wright, 100 Pa. St. 235. Therefore the statute of limitation could not begin to run from that date. But the constitution of 1874 (art. 16, sec. 8) gave a right to owners to have compensation for property injured, as well as for property taken by munici pal and other corporations in the construction or enlargement of their works. The right of action which this section gives is clearly for the actual establishment of the grade on the land. The general rule is, that the cause of action arises when the injury is complete, and this has been uniformly applied, to

the taking of the property for public use, from the case of Schuylkill Nav. Co. v. Thoburn, 7 Serg. & R. 411, down to the present day, etc. There is nothing in the constitutional provision which indicates an intent to depart from the general rule under which, in the present case, the cause of action could not arise until the actual cutting down of the ground in 1887."

Jones v. Borough of Bangor, 144 Pa. St. 638, is to the same effect. In that case our brother McCollum, speaking for the court, said: "Injuries to abutting property, caused by a change of grade, an alteration or enlargement of the street, do not necessarily result from the opening of it to public travel. It is true that in a proceeding to recover damages caused by the opening and grading of a street the party must submit his whole claim, embracing consequential as well as direct injuries, but, where the grading occurs as a separate act of the public authorities, and so long after the opening of the street that the assessment of damages at the time of the appropriation cannot include those resulting from the grading, the latter may be ascertained by a second view': Pusey v. Allegheny City, 98 Pa. St. 522."

We have no doubt that the plaintiff's case was clearly within the constitutional mandate, and hence there was no error in entering judgment in his favor for the amount of damages found by the verdict of the jury. Judgment affirmed.

Streets, Change of Grade, Liability of Cities for."

Common-law Doctrine. - Numerous decisions of the courts of last resort in most of the states have absolutely settled the doctrine that municipal corporations, acting under authority conferred upon them by the legislature to grade and to change the established grade or level of their streets, incur no common-law or implied liability, though the exercise of the power may be injurious to adjoining property owners. A municipal corporation is not liable for consequential damages to abutting land-owners, arising from grading or changing the grade of its streets, provided that in so doing it keeps within the limits of the street, and does not trespass upon or invade private property, and exercises reasonable care and skill in the performance of the work resolved upon, unless there is some provision in the state constitution, in the city charter, or in some statute creating such liability. This is so, although the street is depressed or raised below or above the abutting property, in conforming it to the grade line, so as to cut off or render diffi cult the access to the adjoining property from the street, or to the street

REFERENCE TO MONOGRAPHIC NOTES.

Municipal corporations, liability of, for grading or regrading streets: 7 Am. Rep. 260; 48 Am. Dec. 723, 725; 4 Am. St. Rep. 401

from such property, and although the gradle of the street has been before established, and buildings have been erected and improvements made on the abutting property with reference to such established grade: Note to Sheehy v. Kansas City Cable R'y Co., 4 Am. St. Rep. 401, citing many cases. This rule does not apply to those changes in the grade of a street by which the flow of a natural watercourse is obstructed or accelerated, to the injury of a lot-owner, nor to any scheme or plan by which surface waters are concentrated and thrown upon a lot in greatly increased quantities: See ante, pp.

390-395.

Liability under Constitutional Provisions. It is also well settled that, under a constitutional provision guaranteeing that private property shall not be "taken" for a public use without compensation, a city is not liable for consequential damages caused by an authorized change in the grade of a public street, when private property is not actually encroached upon, although it may be injured in its use: Northern Transp. Co. v. Chicago, 99 U. S. 635; City of Kokomo v. Mahan, 100 Ind. 242; Smith v. City of Eau Claire, 78 Wis 457. In the case last cited, Lyon, J., in delivering the opinion of the court, said: "Perhaps no rule of law is more completely settled than is the rule that if consequential damages result to property owners from raising or lowering the grade of a street by a municipality, it is not a taking of private property for public use within the meaning of the constitution; and that if the municipality act under authority of law in making the change of grade, and with due care, it is not liable for such damages, unless made so by some statute or constitutional provision." So long as there is no application of a street to purposes other than those of a highway, and no diversion of it from street purposes, any changes of grade made lawfully and in good faith for the benefit of the public in using the street as a street, and not made maliciously, or for the purpose of doing injury to the abutter, are not within the constitutional prohibition against taking private property without compensation, nor the basis for an action for consequential damages. A trespass upon or physical invasion of property adjoining the street is necessary to bring mu nicipal authorities, when grading streets, within such constitutional prohibi. tion; and the original and all subsequent purchasers of property abutting on a street take with an implied understanding that the public shall have the right to improve or alter the street for street purposes, and that they can sustain no claim for damages resulting to their property for the impairment or destruction of their incidental rights of ingress and egress, or of light and air, as a mere consequence from the use or improvement of the street as a highway: Selden v. City of Jacksonville, 28 Fla. 558; 29 Am. St. Rep. 278, and note 298.

As an instance of such an invasion of private property as will entitle the adjoining lot-owner to damages for a taking under such constitutional provision may be given the well-considered case of Vanderlip v. City of Grand Rapids, 73 Mich. 522, 16 Am. St. Rep. 597, deciding that when a city, in grading a street, raises an embankment upon nearly thirty-five feet of the entire frontage of an abutting lot, thereby burying a portion of the dwelling. house and barn of the owner, this is as much a taking as to that part of the lot covered by the embankment as though the owner had been ejected by any other means, and is plainly within the inhibition of the constitution. The question under consideration is thoroughly discussed in the above case, and the note thereto, 16 Am. St. Rep. 610-614. To the same effect, under a somewhat similar state of facts, is the case of Gray ▼. Mayor of Knoxville, 85 Tenn. 99.