(dissenting).—I think the judgment of the court below should be reversed. When those under whom the plaintiff claims dedicated the street to public use, it is conceded that they, in substance, said: “Take this street, and use it.” I think it equally clear that they, in effect, further said: “Improve this street so as to adapt it for use as such.” Such adaptation would, of course, include such change in the surface thereof as was necessary to best adapt it to the purposes for which it was designed. If such was the effect of the dedication, it seems clear that the dedicators could not claim damages against the public for doing that which they had said it should do, and as the plaintiff could get no better right than those under whom she holds, it follows that for the injuries set out in the complaint there could be no recovery. In the case of Parke v. Seattle, ante, p. 1,1 have at some length given my reasons for holding that for such injuries no action will lie. I shall not repeat them here.
Something is said in the opinion of the majority of the court as to the proper construction of that provision in our constitution which provides that no property shall be taken or damaged for public use without compensation. I am unable to agree with what is thus said, and if, in my opinion, a construction of such clause was necessary to the decision of this case, I should feel it my duty at some length to express my dissent from the views thus expressed, but under *46my view of the effect of the dedication, as above stated, the decision of the case does not call for such construction; hence I shall not now discuss it.