Dissenting Opinion by
Wright, J.:I am in accord with the position of the majority (1) that there can be-no recovery from the Commonwealth for damages resulting merely from a change of grade; (2) that the Commonwealth is not liable for con*229sequential damages resulting from the improvement of a state highway within a borough; (3) and that, at least so far as this record is concerned, the words “legal right of way line” do not have the same meaning as the words “required right of way line”. However, it appears that the curb was widened from six inches to nine inches, and that there actually was a taking beyond the thirty-six foot paved cartway. The contractor testified that the breaking of the sidewalk was a necessary part of the work, and that the Highway Department had authorized him to go as far back as one foot in order to install the curb forms which the Highway Department required him to use. In the opinion below these forms are designated as “necessary forms for the construction of the curbs”. In other words, the curb could not have been built without invading the sidewalk area, and this the Commonwealth knew and authorized, and in fact required. Appellants’ damages were not occasioned, as the majority implies, by the change of grade, but by the additional taking for the wider curb.
One of our proud boasts as citizens of this great republic is that our courts protect the rights of the individual even against the strong arm of the state itself. I conceive it to be our duty to protect the citizens of the Borough of Waynesburg from the apparent failure of the Commonwealth to insert in this construction contract a requirement that the sidewalk damage be repaired by the contractor. I would reverse , and direct the entry of judgment on the verdict.
Watkins, J., joins in this dissent.