— Though the railroad company had lawful authority to lay its tracks along the street in question it was yet bound to locate the same in conformity to the grade, so as not unnecessarily to interfere with concurrent use by the public. In the absence of any ordinance establishing a different one, it is to be assumed that the natural level of the soil of the street (when actually used for the purposes of a highway) is intended as the city grade for the time being. So that the laying of the track on an embankment therein, some two or three feet above the natural level, interfering with the right of access to adjacent property, is a damage to the owner thereof for which an action may be maintained.
But the proper extent of recovery is a question of greater difficulty. Had the city improved the street at the natural level, or otherwise indicated a purpose to retain it as the permanent grade, a very different question would arise from that now presented. It is evident *25from the facts here disclosed that the existing condition of the street is temporary. The location of the two streams across the street near these lots and the irregularities of the surface of the ground, clearly indicate that the grade will necessarily be the subject of municipal consideration and regulation at no distant day. In such, a condition of things it would be manifestly unj ust to permit a recovery as for a permanent nuisance. The location of the track a little above the natural surface, rendered apparently necessary to conform to other parts of the railroad, should not be regarded, in these circumstances, as evidencing an intent to permanently establish a nuisance affecting the adjacent property, in the absence of any ordinance fixing a grade.
The injury is rather of the kind which the law does not assume will be permanent in effect; as, for example, the dam which caused the stream to back up and injure plaintiff’s premises .in Pinney v. Berry, 61 Mo. 359. In such case, plaintiff may properly recover for actual damages (including any diminution of rental value) to the time of beginning his action, but not for a depreciation in the total value of the inheritance.
The trial court therefore did not err in excluding plaintiff’s offer to show the depreciation in market value of the whole estate by reason of the location of the track in question ; but as it denied him the right to even nominal damages (which, in view of the facts developed, we think he was entitled to recover), the judgment will be reversed and the cause remanded.
SimiwooD, J,, absent. The other judges concur.