People ex rel. Develin v. Asten

Davis, P. J.

(dissenting):

I am not able to concur in the views of my brethren. In my opinion, the statute under which the relator asserts her claim was only intended to give damages in cases where the owner of the land had conformed the buildings thereon to a grade established by law or ordinance and in reliance upon the action of the public authorities, and not to cases where the natural surface of the ground over which a street has been laid, has been voluntarily assumed to be the grade by the party erecting such buildings. In the latter case, the party acts with knowledge that the grade of the street has not been officially established, or, in other words, that there is no “ grudeP He must be held to know that one of the steps necessary to complete the street will be to establish a grade, and to change, so far as required, the natural surface for that purpose. The views of the court, as it seems to me, extend the statute beyond its reason or intent; for it was adopted, as to me seems apparent from an examination of the several statutes relating to the same subject, to change the law as established by the decisions of the courts, in favor of persons who, in reliance upon official acts by which the grade of a street had been fixed and established, have been led to erect buildings conforming thereto, by allowing to such persons the damages sustained by the establishment of a new and different grade. In such a case the owner of the buildings has a right to complain that the official acts have induced him to put himself into a position to suffer damage from a subsequent change of grade, while the person who builds in conformity to the natural surface, assumes to judge for himself that such surface will be adopted, when the street comes to be worked and completed, as the established *466grade. His misjudgment is his own fault, and he cannot be said to-have been misled, or induced by the public authorities to act with regard to a condition of things established by law or public ordinance.

In my opinion the order below should be affirmed.

Order reversed and mandamus ordered.