
    John M. Armstrong vs. City of St. Paul and another.
    March 9, 1883.
    Removal of Soil from Street — Assessment of Cost of Retaining Wall. A municipal corporation may not tax upon real property, fronting a public street, the cost of a retaining wall in-front of such property, rendered . necessary for the purpose of lateral support by reason of the removal by the city of the natural soil of the street.
    Local Improvements — Assessments.—May all v. City of St. Paul, ante, p. 294, followed.
    
      This, like the last preceding ease, was an action brought against the city of St. Paul and its treasurer, to restrain the enforcement of an assessment for a local improvement. A demurrer to the complaint was overruled by Wilkin, J., and the defendants appealed.
    
      W. P. Murray, for appellants.
    
      8. L. Pierce, for respondent.
   Dickinson, J.

This case presents the same questions as were involved in Mayall v. City of St. Paul, ante, p. 294, and that decision controls the present case. One additional fact exists in this case, not presented in the Mayall Case. In grading Mount Airy street, the city made an excavation in front of plaintiff’s property and of an adjoining lot, and erected a retaining wall along the front of the property, to supply the lateral support thereto which became necessary by reason of the removal of the natural support of the soil. The cost of the wall was assessed upon the property in front of which it was erected. This assessment was not authorized. In Dyer v. City of St. Paul, 27 Minn. 457, it was decided that a land-owner upon a public street has a right to the lateral support of the soil within the street, and may recover damages from a municipally for the removal of such natural support. The city may not divest the land-owner of what he is entitled to enjoy as a natural right, and then tax upon him the cost of replacing what has been thus taken away.

Order affirmed. 
      
      Gilfillan, O. J., because of illness, took no part in this case.
     