
    MARTIN O. FOSS v. CITY OF MONTEVIDEO.
    
    November 8, 1929.
    No. 27,826.
    
      C. A. Fosnes, for appellant.
    
      Oluf Gjerset and B. J. Oyen, for respondent.
    
      
       Reported in 227 N. W. 357.
    
   Dibell, J.

Action to recover of the city of Montevideo damages for the change of grade of a street in front of lots owned by the plaintiff. There was a verdict for the plaintiff. Upon defendant’s alternative motion for judgment notwithstanding or’ a new trial the court entered an order granting judgment notwithstanding the verdict. From the judgment entered pursuant to such order the plaintiff appeals.

The plaintiff owns property abutting on First street in Montevideo. The commissioner of highways in February, 1927, located trunk highway No. 12 in front of these lots and raised the grade. In the same month the city council approved and consented to the change in grade. Afterwards and prior to the commencement of this action the state highway was constructed upon the changed grade.

A grade cannot be changed and abutting lots damaged, without compensation to the owner. Dickerman v. City of Duluth, 88 Minn. 288, 92 N. W. 1119; Sallden v. City of Little Falls, 102 Minn. 358, 113 N. W. 884, 13 L.R.A.(N.S.) 790, 120 A. S. R. 635; Vanderburgh v. City of Minneapolis, 98 Minn. 329, 108 N. W. 480, 6 L.R.A.(N.S.) 741.

Someone was liable for damages resulting from the construction-on the changed grade. The statute provides that a trunk highway within the corporate limits of a municipality shall not be constructed unless the plans and specifications are approved by the governing body of the municipality, nor the grade changed without the consent of the governing body. G. S. 1923, § 2554, as amended, 1 Mason, 1927, id. Consent was obtained from the defendant city; and it is claimed that it is liable for the subsequent construction of the highway. This was held in Maguire v. Village of Crosby, 178 Minn 144, 226 N. W. 398, under facts not so unlike as to bring a different result. It is not necessary to do more than refer to that case for a discussion of the principles involved and for a citation of the cases. It may be noted that that case was not reported until after the trial of this one in the court below, and the trial court and counsel did not have the benefit of it.

Judgment reversed.  