and it is only to laying down an asphalt pavement that the proviso required the consent of the lot owners. No other construction is consistent with the other parts of the contract. The proviso follows immediately the provision for the asphalt pavement. It is succeeded by arrangements for the filling, grading and rolling, in the language of the parties, "necessary and needed to be done upon any and all of the said sidewalks, preparatory to the laying of any pavement thereon." The contract, so far as it relates to the next subject, is still more significant. We refer to the agreement for the wooden curbing that might be needed or used in filling up and grading the said sidewalks "preparatory to the putting down of the said pavement, or any other." From this it is evident the parties contemplated that the plaintiffs should do the preparatory work upon all the sidewalks intended to be improved, namely, the work needed to put those sidewalks in a fit condition to receive any one of the pavements prescribed by the ordinance. Which one should crown the preparatory work was to be left primarily to the selection of the lot owners in each block. If a majority of them chose asphalt, the plaintiffs were to do the work. If a majority chose some other one of the materials allowed in the ordinance, the contractor for a pavement made of that other material was to construct that pavement. The filling and curbing was to be done by the plaintiffs in any event, and it was only the paving thereafter respecting which the lot owners had any voice.

This suit has not been brought for paving, nor for any breach of the defendant's contract respecting the paving. The claim is for damages caused by the abrogation or breach of the city's contract relating to other and distinct subjects. Hence it was not necessary to aver any consent of the owners of the property abutting upon the sidewalks. We are, therefore, of opinion that the original and amended petitions sufficiently set forth a cause of action, and that the circuit court erred in sustaining the defendant's demurrer. The judgment will be reversed, and the record remitted with instructions to give judgment on the demurrer against the defendant; and it is so ordered.

JUSTICES BRADLEY, MILLER and FIELD dissented.

CHEEVER v. SHEDD.

(Circuit Court for Vermont: 13 Blatchford, 258-266. 1876.)

Opinion by SHIPMAN, J.

STATEMENT OF FACTS.- In the year 1872, a new highway of fifty feet in width was duly laid out and established in the city of Burlington, by the proper court having jurisdiction over the subject, which highway said court directed should be completed on or before October 15, 1873. The highway is one thousand one hundred and seventy-five feet in length, extending from College street to Pearl street, and is an extension of a previously existing street, called Union street, so as to form a continuous street with Maiden lane, which last two named streets are also of fifty feet in width. The new street is within about fifty rods of the business center of Burlington, a city of eighteen thousand inhabitants, and intersects two important streets, and will be considerably used for public travel. About feet in length and fifty feet in width of the land of John II. Cheever, the complainant, being a portion of a tract of several acres belonging to him, are taken for the street. The court which directed the lay out, the complainant appearing, and being heard thereon, ad

judged that he was "entitled to no land damages in consequence of laying out and establishing said highway, the benefit to said Cheever's premises, through which said highway is laid out, being a full compensation for the land taken for said highway." It is necessary that said street should have the usual sidewalks, curbs and gutters which are customary in city streets, and it is fit and proper for the full accommodation of the public travel, that the whole street, including roadway and sidewalks, should be of fifty feet in width. The natural surface of the plaintiff's land, and of the other land over which this street passes, is uneven, being traversed by ravines or hollows, and by knolls or bluffs, and it was necessary, in order properly to construct the street, and to make a proper grade, that the knolls should be cut through and that the hollows should be filled. The city street commissioners, who had, by statute, the care and superintendence of the highways in the city, and whose duty it was "to make and repair all highways," in order to put the street in a proper condition for public use and travel, established a grade, which grade required three cuts on the land taken from the plaintiff, one of one hundred and sixty-eight feet in length and ten and two-tenths feet in depth at the center, one of sixty feet in length and two and three-tenths feet in depth at the center, the third of sixty-one feet in length and a center depth of one and thirty-five one-hundredths feet. The form of all the cuts was that of a knoll, sloping evenly each way. This grade is a proper one for the purposes of the street. All the earth which was taken from these cuts was used to fill the hollows in the street, but other earth could have been hauled for the same purpose from a greater distance. The street commissioners, in making these cuttings, cut down intentionally the soil and turf upon said street perpendicularly, or very nearly so, up to the extreme boundaries or lines of said street, and claimed and exercised the right to cut said highway perpendicularly up to the limits thereof. The soil is clay and quicksand, and the effect of the perpendicular excavation, unless the bank is protected, is, that the adjoining soil will slip, and be gradually sloughed off by the action of the rain and frost, until a slope has been formed sufficiently inclined to prevent further slipping. An unprotected perpendicular embankment of ten feet in height would be encroached upon, in two or three years, to an extent of five feet, before a proper slope was formed. This result has already commenced upon the land of the complainant. If the city authorities have no right to cause this incidental injury to the adjoining land, their proper course is to use only such a width as will leave a sufficient slope, or to use the entire width and build a retaining wall. If the complainant is remediless, he must grade his land in conformity with the street line, or build a retaining wall himself. A suitable retaining wall would cost $500. Grading the land would probably be less expensive, and would be more advantageous to the owner of the land, in the event of any future disposition or sale of the property. The land of the complainant which has been taken for the street is part of a large tract belonging to the complainant, used heretofore, with the buildings upon it, as a gentleman's mansion. Where the deep cut is made, the land is not ornamented with shrubbery and shade trees, as is the case with the portion adjacent to the house. The present suit is a bill for an injunction to restrain the defendants, who are the street commissioners and the superintendent of streets, from excavating in such a manner as to cause the injury to the adjacent land which has been mentioned. The superintendent has, by the city charter, the immediate care and supervision of the streets, and his duty is to see that they are properly constructed and kept in repair. After the bill was filed, a provisional injunc

tion was granted, which is still in force. The bill proceeds upon the idea that the defendants are acting in the premises without reasonable care.

From the preceding statement, it will be seen that the proper authority has directed the construction of a street of fifty feet in width, and has assessed the damages which will arise to the complainant from the taking of his land, which damages include all those which are immediately incident to, and consequent upon, the construction of the highway. An assessment of damages is for the direct and immediate damage resulting from the laying out of the highway. The owner is to be remunerated for the land taken, for the deprivation of 66 any right or privilege attached to it, and for the damage done by the lay out to the land connected with that which is covered by the highway, and of which it was a part." Clark v. Saybrook, 21 Conn., 313. When a part only of the land of the owner is taken for a public work, the damage which will necessarily result, from the use of the part which is taken, to the land which is not occupied by the public is to be estimated. When the remaining land is separated by the new highway from outbuildings, or from a supply of water, or is left in unsalable condition, or unfit for occupancy, or is divided by high embankments which cause inconvenience, the effect of these and similar circumstances, and the effect which the appropriation will have in benefiting the remaining land, are to be taken into consideration in the estimate of damages. In the case of a new highway, the general grade which must be adopted, so as to conform to the existing grade of connecting streets, and so as to make a convenient highway, are obvious to the appraisers of damages, who inspect the premises and can see the injury and the special benefit which the opening of a highway must necessarily cause to the whole land. The presumption is that the appraisal is for the value of the property taken and the damage which will specially result to the residue by such taking. But it is truly said that the appraisal assumes and presupposes that the highway is to be constructed with. reasonable care, and if, "for want of reasonable care and skill in the construction of such work, unnecessary damage is caused, it is not warranted by the right of eminent domain." Sprague v. Worcester, 13 Gray, 195. Consequential damages which result to the remaining land, from want of reasonable care in the construction of the highway, are not included in the estimate of damages. It is contended that this highway was not constructed with reasonable care, by reason of the fact that it was excavated upon the extreme limits of the land taken, so as to cause the adjoining land to be deprived of its lateral support, and so as to inflict an actionable injury.

§ 2359. Public officers of corporations making improvements are bound to use reasonable care.

In order to determine whether reasonable care has been taken, it becomes necessary to consider the powers which municipal corporations possess in regard to the construction of highways, and in regard to the grade, and the alterations in the grade, of streets, whereby a consequential injury is caused to adjoining land. The defendants are public officers, and the duty has been imposed upon them by the legislature of making and constructing highways in the city of Burlington. The law, while it imposes this duty upon public officers, also requires them to construct public works so as not wantonly or maliciously to injure adjoining proprietors, and so as to cause no unnecessary damage. They are not exempted from the obligation to use reasonable care. Mersey Dock Cases, 11 H. L. Cas., 713. The work must be done in such a reasonable and proper manner as to cause no damage which is not necessarily incident to the

prosecution of the work. Thus municipal corporations are required to build highways over water-courses in such a manner as not unreasonably to set the water back upon adjoining proprietors. Although a strip of land of seventyfive feet in width should be condemned to be taken for a street, yet if the whole width should be excavated so as to injure adjoining proprietors, when a strip of fifty feet would amply accommodate the public needs, and such damage was not necessarily incident to a reasonable performance of the public work, such an excavation would be an unreasonable exercise of power. If the public officer "should abuse his authority, by digging down or raising up where it might not be necessary for the reasonable repair and amendment of the road, he would be amenable to any suffering party for his damages." Callender v. Marsh, 1 Pick., 418. The public work should not be planned and should not be executed so as to inflict unnecessary damage; and, therefore, if a work is carried on in such a manner as unduly to injure the adjoining proprietor, the prosecution of such a work may be restrained by a court of equity.

§ 2360. A municipal corporation is not responsible for consequential damages in grading streets with reasonable care.

But the principle seems also to have been established, that, in the absence of statutory provisions, a municipal corporation or its agents are not liable for the consequential damage which is necessarily done, in the exercise of reasonable care, to adjoining land not taken for public use, in the execution of a public work imposed by the legislature upon the corporation, for the public benefit, although an individual who executes such an improvement upon his own land for his private benefit might strictly be liable for such consequential injury. Sutton v. Clarke, 6 Taunt., 29; Boulton v. Crowther, 2 Barn. & Cress., 703; Mersey Dock Cases, 11 H. L. Cas., 713; Smith v. Corporation of Washington, 20 How., 135; Radcliff v. Brooklyn, 4 Comst., 195; Callender v. Marsh, 1 Pick., 418; O'Connor v. Pittsburgh, 18 Penn. St., 187; Hollister v. Union Co., 9 Conn., 436; Reynolds v. Shreveport, 13 La. Ann., 426; Murphy v. Chicago, 29 Ill., 279; Richardson v. Vt. Cent. R. Co., 25 Vt., 474. This doctrine is based upon the theory that the act is done in the discharge of a duty which is imposed by the supreme power of the state upon the municipal corporation, and is done for the public benefit and not for private emolument. It is absolutely necessary for the public accommodation that streets should be raised and lowered. "Streets cannot be opened and kept in repair, or made safe or convenient for public use, without being made level, or as nearly so as the nature of the ground will permit. Hills must be cut down and hollows filled up, or in other words, the road must be 'graded' or 'reduced to a certain degree of ascent or descent,' which is the proper definition of the verb 'to grade.' If the duty imposed on the corporation requires this to be done, the power must be co-extensive with the duty." Smith v. Washington, 20 How., 148. This work, especially in a city, where population is crowded and land is valuable, will cause some damage to adjoining proprietors, and inflict hardship upon individuals. Such damage, when it has not been caused unnecessarily, is "damnum absque injuria,” from the fact that the work which causes the damage is for the public benefit, and "private interests must yield to public accommodation. One cannot build his house on the top of a hill in the midst of a city, and require the grade of the street to conform to his convenience, at the expense of that of the public." Smith v. Washington, cited supra ($3 2337-39, supra).

It is not intended that this principle should be considered as applicable to the acts of private corporations who are authorized by the legislature to construct

works of a public character, such as canals or railroads, for, although such corporations are empowered to take land, upon the ground that the taking is for the public use, and although the works are to be used by the public, yet they are constructed primarily for the benefit and emolument of the private corporations who have them in charge, and who are not public agents. Hooker v. N. H. & N. Co., 15 Conn., 312.

In the application of these principles to the present case, it is to be observed that it has been found that a street of fifty feet in width was a fit and proper width for the public necessities, at the place where the street was constructed; that the grade was a proper grade, and that, owing to the unevenness of the land, all the soil which was taken from the cuts was necessarily used to fill the hollows. The city was not, therefore, using an unnecessary or unreasonable quantity of land, or excavating too much earth. But it is urged, with great force, that the defendants were not constructing the street with reasonable care, in this, that they were cutting the land at the extreme limits of the street perpendicularly, the inevitable effect of which method of construction is to cause the adjoining land to cave into the street, and to subject the owner to expense and damage; that, if an individual or private corporation excavates in such a manner that the adjacent land is deprived of the lateral support of the soil, and of adequate protection, such private person or corporation inflicts thereby an actionable injury upon the adjoining proprietor, and that, if the city desired to use their entire fifty feet of land, when such use caused an injury to the complainant, they should prevent the injury by building, at their own expense, a retaining wall, and the neglect to provide a protection is a want of reasonable

care.

§ 2361. A municipal corporation may grade and change the grade of streets when public interests require it, without being liable to adjoining proprietors for falling embankments.

While all the decisions admit the doctrine that a public work must be constructed with reasonable care, the question of the extent of authority which a municipal corporation can exercise in respect to the grade of streets, whereby a consequential damage is caused to adjoining land, has been frequently before the courts. The strong weight of authority in this country is to the effect that such a corporation is authorized to grade and change the grade of streets from time to time, when it is necessary so to do, without protecting the earth or embankments of the adjoining proprietors, who are often subjected to expense in adapting their land to the grade, and in protecting their property from the consequential damage which is incident to the lowering of the street. The injury which is done to adjoining proprietors most frequently results from the changes of grade which become necessary, as a city increases in population and business, and the needs of the public become more urgent, but not unfrequently results from the original grade upon which the street is constructed. Necessary grades and changes of grade are constantly being made in our cities, under the power to construct and repair streets, with no protection of the adjoining soil, by the municipal authorities, and such exercise of authority has been, with some exceptions, sustained by the courts of the different states. The justification has been upon the principle which has already been stated, viz., that a public officer is justified in inflicting consequential damage in the necessary prosecution of a public work imposed by the legislature upon a municipal corporation and prosecuted for the public benefit. The leading authorities have already been cited.