Upon a motion for a rehearing there was a brief for the respondents by C. H. Hamilton, and a brief for the appellant signed by John T. Kelly, city attorney, and Glinton G. Price, of counsel.
The following opinion was filed April 30, 1907:
Winslow, J.The respondent moves for a rehearing in this case upon three grounds which will be briefly considered.
*4371. It is forcibly argued that tbe court was wrong in bold-ing that sec. 1210^ Stats. (1898), as amended by cb. 9, Laws -of 1901, applies to tbe city of Milwaukee. We bave again examined tbe question in tbe light of tbe new considerations now urged, and we feel entirely satisfied, with tbe correctness of tbe original decision upon tbis point; bence tbe question will not be reopened.
2. It is urged that it appears by tbe-defendant’s answer that tbe grade of tbe street was not fixed by ordinance until November 20, 1902, wbicb was after tbe actual grading bad been ordered to be done, and bence that there was neither jurisdiction on tbe part of tbe city council to order tbe grading to be done nor jurisdiction on tbe part of tbe court to order a reassessment. Tbis subject was briefly mentioned in tbe original brief of respondents, but was overlooked in tbe opinion: Reference to tbe pleadings'"shows that in tbe complaint it was expressly charged that tbe city fixed tbe grade of tbe street by ordinances adopted during tbe years .1901, 1902, •and 1903, and that tbe resolution by wbicb tbe proceedings for actually grading tbe streets were initiated was introduced into tbe common council March 10, 1902, and adopted May 5, 1902. There was no charge in tbe complaint that tbe proceedings were irregular or illegal on account of any failure to previously fix tbe grade, but tbe sole claim made was that tbe assessment was void because arbitrarily made and because there was a total failure to consider or assess any damages. There was an allegation in tbe answer that tbe first grade of tbe street was fixed November 20, 1902, wbicb would be after tbe proceedings for grading bad been commenced; but it was further alleged in tbe same connection that whatever grading was done in front of tbe plaintiffs’ premises was done for tbe purpose of conforming tbe street to said established grade. Upon tbe argument of tbe case it was claimed that tbis date was a clerical error and should bave been November 20, 1900. However tbis may be, it *438clearly appears that no claim of illegality or irregularity in the grading proceedings on account of failure to properly establish the grade was ever made in this case until it reached this court. The case was fought through the trial court upon the assumption that the grade was established by timely action of the common council, as the complaint in effect states. No attention was paid to the allegation in the answer that the grade was first established in November, 1902, or, if attention was paid thereto, it seems to have been considered immaterial.
It is now stated by respondents’ counsel that since the prior argument sufficient facts have come to his notice to warrant him in asserting that no valid ordinance establishing the grade of the street has ever been passed by the common council, and he desires leave to amend his complaint so as to allege this fact and obtain a new trial on this new issue. It will be noticed that he does not claim that no ordinance was attempted to be passed or that the date of November 20, 1902, is the correct date, hut simply that no valid ordinance was ever passed. It is only in exceptional cases that this court will remit a case which is ready for final disposition after full trial, and grant leave to malee application to the trial court to set up new causes of action or new defenses making substantially another case. There must be a fairly persuasive showing on the merits, and it should also appear that the failure to present the new cause of action or defense is not attributable to mere negligence. Wis. M. & F. Ins. Co. Bank v. Mann, 100 Wis. 596, 76 N. W. 777. We do not think such a case is here presented.
3. It was an undisputed fact in the case that by reason of the grading of the street the soil of plaintiffs’ premises was left unsupported on the margin of the street, and that considerable quantities of the soil fell down into the street; and the jury found in answer to the third question that the *439subsidence of tbe soil caused no depreciation in the value of tbe premises. It is now claimed by tbe respondents that this subsidence of tbe soil constitutes a taking of property, and that the plaintiffs are in any event entitled to a judgment for nominal damages and costs, irrespective of all other questions. Damkoehler v. Milwaukee, 124 Wis. 144, 101 N. W. 706. This court has consistently and frequently held that, in tbe absence of express statute, a city is not liable for consequential damages to an adjoining property owner resulting from tbe lawful change of grade of a street, unless tbe work be negligently done and injury result from sucb negligence. Harrison v. Milwaukee Co. 51 Wis. 645, 8 N. W. 731; Smith v. Eau Claire, 78 Wis. 547, 47 N. W. 830; Colclough v. Milwaukee, 92 Wis. 182, 65 N. W. 1039. Tbis is because tbe mere changing of tbe grade of tbe street is not considered a taking of property within tbe meaning of tbe constitution. An instance of recovery on tbe ground), of negligence in doing tbe work will be found in Bunker v. Hudson, 122 Wis. 43, 99 N. W. 448, where in grading up a> street tbe dirt was allowed to extend over onto an adjoining-proprietor’s land.
There is a sharp conflict in tbe authorities upon tbe question whether a property owner is entitled as against tbe city to tbe lateral support of tbe soil. There is much authority in support of tbe proposition that no sucb right exists, and Mr. Dillon in bis work on Municipal Corporations (4th, ed. §§ 990, 991) so states tbe rule. There is also much authority to the contrary. 2 Abbott, Mun. Corp. § 819; Elliott, Roads & Streets (2d ed.) § 205. Tbis court upon full consideration of tbe subject in tbe Damkoehler Case adopted tbe latter doctrine as tbe one best calculated to do justice, on tbe ground that, where a substantial-part of tbe adjoining owner’s land falls into tbe street by reason of tbe removal of its lateral support in tbe course of grading, there was a *440taking of tbe soil for public purposes and not a mere consequential damage. To tbe authorities in support of tbis rule cited in tbat case may be added Parke v. Seattle, 5 Wash. 1, 31 Pac. 310, 32 Pac. 82, 20 L. R. A. 68. We shall not rediscuss tbe question here. It must be considered as settled.
Such being tbe law', it appears clearly tbat there has been a taking of private property here for public use, for which the plaintiffs are entitled to recover nominal damages. Tbe assessment of benefits and damages does not cover such taking, for the plain reason tbat such assessment is only designed for tbe purpose of measuring tbe benefits and damages resulting from a lawful exercise of tbe power to grade, not for assessing tbe value of property taken for public use. Although there was no actual damage resulting from tbe taking, tbe plaintiffs were entitled to recover nominal damages for tbe invasion of their constitutional rights, and this would carry costs. Tbe judgment for costs in favor of tbe plaintiffs should therefore have been allowed to stand.
By the Court. — Tbe motion for a rehearing is denied without costs, and tbe mandate herein is changed so as to read as follows: The judgment is modified by reducing tbe amount thereof to tbe sum of $124.31, and as so modified tbe same is affirmed, with costs in tbis court to the appellant.