This proceeding was instituted by the city of Seattle to ascertain and determine the damages resulting to abutting property owners from the regrade of Jackson -street in that city. Two witnesses on the part of the city testified that the lot owned by the defendant Buty would be benefited by the regrade from $50,000 to $75,000. No further testimony was offered on the question of damages or benefits by either side, and the court directed the jury to return a verdict of no damages. From the judgment entered on this verdict, the present appeal is prosecuted.
In support of his appeal, the appellant earnestly insists that inasmuch as all the testimony in the case was expert or opinion evidence, and the jury viewed the premises, the court *140was in error in taking the question of damages from the jury. But in view of the position taken by the appellant in the court below, he cannot be heard to make his present contention before this court. At the close of the testimony, the appellant moved the court to dismiss the action for the reason that the city had failed to show any damage to his property. For the like reason respondent moved for a directed verdict of no damages. Both parties took the position before the lower court that there was no question of damages for the jury to pass upon; they only differed as to the form of the judgment that should be entered. For aught that appears, the question of damages would have been submitted to the jury had the appellant taken the same position in the lower court that he how takes in this court. We must therefore refuse to consider the question discussed in the briefs and argument, and the judgment of the court below will be affirmed.