
    CHANGE OF GRADE — MUNICIPAL CORPORATIONS.
    [Lorain (8th) Circuit Court,
    April 29, 1910.]
    Marvin, Winch and Henry, JJ.
    
      Irvin W. Metcalf v. Elyria (City).
    Damages Lie for Change of tirade of Sidewalk Laid on Grade Heretofore Designated by City Engineer.
    Enactment by a municipal council of a resolution and ordinance directing a city' engineer to determine grades of streets and sidewalks in the municipality, and subsequent designation by such engineer of a grade for laying sidewalks, amount to such a permanent fixing of the grade of the street on which sidewalks were so laid as entitles an abutting owner. to improve his premises in relation to such grade,, and upon change of such grade an action for damages lies.
    [Proof of this decision was submitted to Judge Henry and corrected/ — Ed.]
    Error to common pleas court.
    
      Webber & Metcalf, for plaintiff in error.
    
      H. A. Pounds, for defendant in error.
    
      
      Affirmed, no op., Elyria v. Metcalf, 84 O. S. 501.
    
   HENRY, J.

The parties stand as they stood below. The action below was brought by the owner of property abutting upon West River street in the city of Elyria, for damages alleged.to have been sustained by the plaintiff by reason of a change .of grade of said street. A verdict for the city of Elyria was directed at the close of the plaintiff’s evidence. Prior to plaintiff’s purchase of said premises a stone walk was laid along the street in front of his lot, pursuant to a resolution of the city council requiring the same to be done. At that time the city engineer designated the grade for the sidewalk, as required and authorized not only by the said resolution, but also by an ordinance providing that he should determine the grades of the city streets and sidewalks. The street grade had not, however, been established by any other action of the municipality until July, 1907, when a grade was fixed by the city substantially differing from and out of accord with the grade of the sidewalk as previously established. This action of the city is alleged by the plaintiff to have amounted to a' change of grade of the street within the familiar rule, and he therefore seeks to recover the damages which he has admittedly sustained in consequence of such change of grade, if, in contemplation of law, it be a change.

The authorities which the city relies on and on which the court below founded its decision, are: Neubert v. Toledo, 6 Circ. Dec. 66 (9 R. 462); Taber v. Bowling Green, 28 O. C. C. 173 (7 N. S. 385).

The syllabus of the former case as reported in Neubert v. Toledo, supra, and quoted in Taber v. Bowling Green, supra, contains the following language:

“The fact that a city has left a street for many years with its natural grade, that the public has used the street at that grade for all that time, and that the city has even had sewers laid and sidewalks constructed in such street in that condition, does not preclude the city from afterwards finally adopting a different grade for such street, and a property owner has no right to assume that the city has adopted 'such original grade for the street.”

Upon examination of these cases, however, we find that the facts are not as in the case at bar such as to compel the inference that the municipality in connection with the laying of a sidewalk had intended to fix or had fixed permanently the grade of the street where such sidewalk was laid. The rule laid down in the second paragraph of the syllabus of the case of Akron v. Chamberlain Co. 34 Ohio St. 328 [32 Am. Rep. 367], and followed in various cases since, is as follows:

“The liability of a municipality for injury to buildings on abutting lots exists only where such buildings were erected with reference to a grade actually established, either by ordinance or such improvement of -the street as fairly indicated that the grade was permanently fixed, and the damage resulte l from a change of such grade, or, where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of an unreasonable grade.”

In the opinion by Mcllvaine, J., at page 336, it is said:

‘ ‘ That the establishment of a grade whereby lot owners are justified in assuming that no change will be made in the grade of a street, and may, therefore, improve their lots with reference to its present condition, so that the municipality will be liable for injuries to their improvements, resulting from a subsequent change of the grade, does not necessarily require the passage of an ordinance or other legislative action; but it may be shown, by the nature of the improvement on the surface of the street, under the direction or sanction of the proper authorities, whether in accordance with an ordained grade line or not; but otherwise, if the surface improvement indicates a mere temporary use or condition of the street.”

Not without some hesitancy we are of opinion that the ordinances before referred to and the acts of the city engineer in pursuance thereof at the time the sidewalk in question was laid, amount to such a permanent fixing of the grade of the street as entitled the abutting lot owner to improve his premises in relation to such grade, as was done in this case.

It follows-that the court below erred in directing a verdict in behalf of the city, upon the ground that no liability was indicated by the facts in evidence, and the judgment of the court of common pleas is therefore reversed and the cause remanded for further proceedings.

Marvin and Winch, JJ., concur.  