i. munioxpai, change o?n: m'ooi'dam-8’ ases' — It is provided in section 469 of the Code that “ when any city or town shall have established the grade of any street, and any person shall have built or made any improvements on such street according to the established grade thereof, and such city or town shall alter said established grade in such a manner as to injure, or diminish the value of, said property, said city or town shall pay the owner of said property so injured the amount of such damage or injury.” Such being the statute tlie plaintiff’s right of recovery is clear, provided he has sustained an injury within the meaning of the statute. The court *562below held that he had, even though the market value of the lot might have been increased by the change.
■ In our opinion it cannot be said that a change is such as “to injure or diminish the value of the property,” where some merely incidental disadvantage or expense is caused, but where the change is such that the value of the property on the whole is increased by it. It is true that where private property is taken for public use, just compensation must be made without regard to resulting advantages. Section 18 of the Bill of Nights. The advantage resulting to the property owner results to him as a member of the public. The rise enjoyed by him is a part of the public rise. It is deemed improper, therefore, that the property owner should be deprived of his property, and be paid for it in whole or in part by an advantage which he enjoys only in common with the public. The principle involved in the case at bar is entirely different. In the first place private property is not taken for public use where there is a mere change of grade of a street. It is, to be sure, insisted by the appellee that the interest which the property owner has in the established grade is in the nature of property. But if we should concede this to be so, that interest could hardly be said to be taken for public use. Besides, where the change is such as to benefit the property, all things considered, the property owner cannot be said to have any interest in the established grade. ITe is interested in having the grade changed rather than maintained. Again, whatever advantage accrues to the property owner accrues to him mainly as an individual and not as a member of the public.' We do not think, therefore, that section 18 of the Bill of Nights has any application to such a case.
While the court below did not find as a tact that the value of the plaintiff’s property was increased by the change of grade, and possibly it was not, yet the city was entitled to have a finding upon that question, and we think that the court erred in excluding from its consideration the evidence in relation thereto. The fact found in relation to loss of rent, and expense in raising the building, was not sufficient to justify the rendition of a judgment in the plaintiff’s favor.
Reversed.