Tbe only question to be determined on tbis appeal is, Does tbe signing of tbe petition, by tbe plaintiff, to have tbe street in front of bis lots worked to tbe grade of 1869, operate as a waiver of bis right to recover damages for tbe injury to bis lots caused by such grade? "We think tbis question must be determined in tbe negative. Tbe maxim, volenti, non fit vnjuria, which is invoked to defeat a recovery of such damages, is not applicable, because, under tbe circumstances of tbe case, such signing cannot, in any just sense, be said to be a willing or voluntary act. T Story’s Eq. Jur., § 302. And herein lies tbe distinction between tbis case and tbe cases cited by tbe learned counsel for tbe appellant, in which tbe maxim has been held applicable. It is believed that in each of them tbe act which was held to operate as an estoppel was purely a voluntary act.
Tbe plaintiff was suffering serious special injury by reason of tbe partial execution of tbe grade which tbe city authorities bad established without bis consent, and it would be simply monstrous to bold that be could not ask tbe city to relieve Mm from such injury by completing tbe grade in front of bis lots, or ordering it to be done, without thereby waiving or surrendering bis right to recover tbe damages caused by tbe change of grade. Tbe above maxim cannot properly be made tbe instrument of such injustice. How tbe case would have stood bad the plaintiff petitioned tbe council in tbe first instance to establish tbe grade of 1869, or to commence work upon tbe new grade, we do not here determine. We only decide that under tbe undisputed facts of tbe case, as disclosed by tbe record, tbe plaintiff, by signing tbe petition, "did not *364waive bis right to damages for the injury to bis lots caused by working tbe street in front of them to the grade established in 1869.
By the Court. — Judgment affirmed.