ON REHEARING.
DTJFOUR, J.The following statement is made in the application and brief for rehearing:
“And whereas we will not undertake to discuss the soundness of the conclusions reached in that cause (i. e., Gele vs. Cotonio), without the ordinance before you. we feel satisfied that the same doctrine cannot apply to the cause at bar, where the ordinance in question was not introduced in the trial Court, either in its entirety or by title and number, and forms no part of the transcript of appeal before your Honors."
We now adhere to the view that, in a case like this, a party may recover for improvements inseparable from the soil, where the owner would have himself been legally bound to make such improvement.
But the able attorney for absent heirs correctly states that, no city ordinance is to be found in the record and that we may .not take judicial cognizance of the same.
*72In point of fact, we had, at the hearing understood, erroneously it appears, that there was no dispute as to the existence- and scope of the ordinance.
But in order to do justice- to the opponent with whom is the- law of the case, it is proper that we should give him an opportunity to supply the missing proof.
Our previous decree is set aside, the judgment is reversed and the cause is remanded for trial according to the views herein expressed, the costs of appeal to be paid by the opponent Letel-lier, and those of the lower Court to await the final determination
December 7, 1908.