I concur in the result for the reason that I think this case is not an action for damages caused by any defective, unsafe, dangerous or obstructed condition of a street as set out in Section 10-7-77, U.C.A. 1953. That part of the statute has to do with damages caused by a defect or obstruction in the street and it relates to travel upon the street.
So far as the record in this case shows, there was nothing dangerous, defective or unsafe about the street. The claim made is that of removing lateral support and trespass. In fact, plaintiff states in his brief the following:
During the course of the construction work the Defendant caused the grade of the street and side-walk adjacent to Plaintiff's property to be substantially changed and in the process thereof removed the old side-walk and parking area, and as a result of substantial excavation removed the lateral support adjacent to Plaintiffs' property. Also the construction activities destroyed portions of the Plaintiffs' sprinkling system, removed substantial vegetation, ornamental plants, portions of stair-well thereby destroying access, and removed quantities of soil from Plaintiffs' property and trespassed upon the Plaintiffs' land and premises.
For claims against a municipality other than for damages from the dangerous, etc., condition of the street the section cited above is specific. It says:
Every claim other than claims above mentioned [defects in the street] against any city or town must be presented, . . . to the governing body within one year after the . . . claim accrued, . . . .
In the instant matter the claim was presented within one year after it accrued. I therefore concur in remanding this case for further proceedings.
HENRIOD, C.J., concurs in the views expressed in the opinion of ELLETT, J.