We recognize unhesitatingly as sound law, that the city has the right to establish and change the grades of the streets, and to compel the owners of lots to grade the streets accordingly. If the owners of lots will not themselves do this, then the law authorizes the city to do it at the expense of the owners, and when a grade is established or altered in good faith, with the purpose of improving the streets, the courts will not inquire whether it was the very best grade which could have been adopted, and if, upon the neglect of the owners to grade the streets, in pursuance to the city ordinances, fixing the grade, the city does it with reasonable care and diligence, it is not liable to the owners of the lots for the inconvenience occasioned by necessary obstructions to the streets while they are being graded, nor for the expense of raising the buildings tó conform to the new grade. The law presumes that the value of the property is enhanced more than the amount of such inconvenience and expense. If the proceedings to raise the grade were regular, it was the duty of the plaintiff himself to have raised the street to grade, and had he done so, it would be strange indeed, if he could require the city to pay for the inconvenience to him, resulting from the obstruction to the street, which he occasioned while grading it, or to pay the cost of raising' his buildings up to the elevation to which he had raised the street, in pursuance of a legal duty resting upon him, and he can have no more right to claim damages when the city has graded the streets for him than he would have had if he had done it himself. The law which authorized the city to impose this duty upon him, necessarily imposes upon him any burthen or damage resulting to him in the performance of this duty. He who purchases, holds or improves city property, does so knowing that the legislature has the right to confer this power upon the city, if that has not already been done, and that he is liable to be subjected to these inconveniences or supposed losses. He purchases or improves the property with the implied understanding that this may be done, and that if it is done, he must bear the burthen thus imposed upon him by law.
But when the city undertakes to do this work, it must do it in good faith and with reasonable care and diligence, and for damages resulting from the want of these, it is undoubtedly responsible. • Now this declaration charges that the city, by its agents and servants, “ maliciously, wrongfully and without reasonable cause, obstructed and filled up said street,” in the first count; and in the second count it is charged, that the city, by its servants, “ through negligence, unskillfulness, malice, and without reasonable cause, filled up the street,” etc.; and in the third count it is charged that the city “ designing maliciously to wrong, injure and oppress the plaintiff, without authority or right, and without reasonable cause, negligently caused said highway to be filled up,” etc. Now, here are words of aggravation, which, if true, render the city liable to damages to the injured party, which require to be answered. The demurrer should have been overruled.
The judgment must be reversed, and the cause remanded.
Judgment reversed,.