*28Concurring opinion.
1. The right oí the Drainage Commission to use the streets as an incident to construction carries with it the correlative obligation to restore them to their former condition, and to repair any damage that may have been caused.
2. The law does not contemplate in such a case “ damnum absque injuria,” whether the property injured be municipal or private, compensation must be made for such injury out of the drainage fund, which is clearly intended to pay for the destruction incidental to the construction.
DUFOUR, J.Act 114 of 1896, and the amendments to it. by Acts 80 of 1898 and 72 of 1900, look to the creation of a Commission to take charge of the drainage of the city and set apart a fund to be applied to that purpose. Such fund is to be used solely for the construction permanent of public works, and the city is to bear the expense of their operation also solely.
The right to use the streets as an incident to construction carries with it the correlative obligation to restore them to their former condition, and to repair any damage that may have been caused. The law does not contemplate “damnum absque injuria” whether the property injured be municipal or private compensation must' be made out of the drainage fund, which was clearly intended to pay for the destruction incidental to the construction.
Had the Statutes intended the city to bear the loss out of her specially assigned funds, they would have said so. It is, in my view-immaterial whether the commission was at fault or not. I do not find that the contractors were at fault. I, therefore, concur.
November 9th, 1903.