
    The City of Akron v. The Chamberlain Company.
    1. The owner of a lot abutting on an unimproved street of a city or village, in erecting buildings thereon, assumes the risk of all damage which may result from the subsequent grading and improvement of the street by the municipal authorities, if made within the reasonable exercise of their power.
    2. 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 resulted 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.
    3. Whether a grade be unreasonable or not, must be determined by the circumstances existing at the time the grade was established, and not by the circumstances existing at the time abutting lots may have been improved.
    4. Within the principle of municipal liability, as above stated, is the case where a lot is improved in anticipation of, and with reference to, a reasonable future grade which is afterward established, and damage results from a subsequent change in the grade.
    Error to the District Court of Summit county.
    The original action was instituted in the Probate Court of Summit county, by the City of Akron, against the Chamberlain Company (a corporation) and others, under the statute (§ 566 of the municipal code), for the purpose ■ of having the damages sustained by the defendants by reason of the improvement of West Market street assessed by a jury.
    The Chamberlain Company was the owner of a flouring mill, erected on a lot abutting on the street, and the damages sustained resulted from an elevation of the grade, about 14 feet, in front of the mill. The mill had been erected in the year 1842, and the grade of the street was raised in 1876, under an ordinance passed in 1873. Testimony was offered tending, among other things, to prove that the mill had been erected before the grade of the street liad been established, and also tending to prove that in 1844 the municipal authorities had established a grade suitable for the convenient use of the mill, and that the improvement of the street in 1876 was a change in the established grade, which resulted in injury to the mill. Testimony was also offered tending to show that no grade had been established in 1844, as claimed by ihe company.
    The jury assessed the company’s damages at $9,600, for which judgment was rendered. This judgment was afterward affirmed in the common pleas and district courts. The errors complained of are assigned upon the charge of the probate court to the jury, and the refusal to charge as requested.
    
      S. Burke, for the plaintiff in error:
    It was a recognized fact upon the trial that no grade was •established at the time that the buildings constituting the plaintiff’s mill were erected. The court recognized the fact in its charge; and yet it charged the jury that if there was a change made in the street from the grade actually worked and used at the time the mill was built, such change rendered the city liable for damages. We maintain that the charge of the court on this subject wras wrong, and especially that it was calculated to, and did, mislead the julT-
    What is now the city of Akron was, when the mill was built, a comparatively small town, and the town authorities had not in any manner “indicated, ” to the persons who built the mill, or to anyone else, what the grade of the street would be at the point fronting the mill. The town, therefore, did nothing to mislead those who erected the mill; no just anticipations of those who erected the mill were disappointed by any subsequent change upon the part of the -town or city.
    The probate judge went further to recognize or establish the liability of the city for damages in this case than any reported decision of this court justifies. There may be 
      dicta for saying that if no grade had been established at the time the buildings were erected, and the builder, having reference to the future grading of the streets and to-public use, anticipates with reasonable certainty the wants, of the public, and erects his buildings in accordance with such reasonably anticipated use, and the town or city afterward grades to his damage and injury, that he may recover. This dicta, however, I understand to be substantially rejected by the supreme court in Railway v. Cumminsville, 14 Ohio St. 523; Cincinnati v. Penny, 21 Ohio St 499.
    The rule that seems to be recognized in Crawford v. Delaware, 7 Ohio St. 459, that a person building is compelled to look into futurity and anticipate a reasonable grade, is. altogether too uncertain for application. How far shall he look into the future ? By what rule will he multiply the-increase of population? By what rule will he determine the grade that shall afterward be established by municipal authority? In any view that we are able to take of this, rule, it seems to us altogether too variable aud uncertain for practical use. It is a severe rule which holds a town or city liable for damages for using its own property in a legitimate and proper manner. It is certainly a hard rule of law which inflicts damages upon either a corporation or a private person for doing that which they have a perfect and lawful right to do, and yet this hard and severe rule is-applied whenever a city or town is held auswerable for damage caused by a change of grade. It is diflicult upon principle to see why a town or city has not the same right to change the grade of its streets and adapt them to the-wants of the public that an adjoining proprietor has to pull down his old house and build a different kind of building.. The law certainly ought not to be more exacting of proprietors of proper!}’ than to require them to so use their own as not to do any unnecessary injury to others. 2 Dillon on-Mun. Corp. 896-900.
    But if we regard this rule as being in force in Ohio, that a municipal corporation is answerable for damages caused by a change of an established grade, still the charge given by the court in this case was clearly wrong, and the defendant in error was not entitled to recover. His buildings-were constructed, foundations for them were laid long before any grade was established; as to him, therefore, there never was a change of grade. He never built a mill upon a grade and adopted a grade which was afterward changed-
    
      R. P. Spalding, for defendant in error:
    It is claimed for the defendant in error, that a long-continued course of decisions in Ohio has established the doctrine in our state that municipal corporations, after once establishing a grade for a street,, can make no change to the special injury of a lot-holder who has adjusted his buildings to that grade, without incurring the liability to make full compensation for the injury. Williams’ case, 3 Coke, 73, Pt. 5; Woolrich on Ways, 53; Year Book, 27, Henry VIII, ch. 10, p.. 27; Railway v. Cumminsville, 14 Ohio St. 547; McComb v. Akron, 15 Ohio St. 480; Stetson v. Faxon, 19 Pick. 147; Baron v. Baltimore, 2 Am. Jur. 203; Rhodes v. Cleveland, 10 Ohio St. 160; Akron v. McComb, 18 Ohio St. 229; Crawford, v. Delaware, 7 Ohio St. 459; Jackson v. Jackson, 16 Ohio St. 163; Cincinnati v. Penny, 21 Ohio St. 499 ; Youngstown v. Moon, 30 Ohio St. 133.
    
      F. J. Dickman, also for defendants in error:
    I. The only error alleged by the plaintiff in error consists in the charge of the court as given, and in its refusal to-charge as requested.
    If there was error in this, it was because he followed the current of decisions by the Supreme Court of Ohio.
    The charge of the court, taken as a whole, embodied, as its gist, in unmistakable language, these cardinal principles, viz.:
    1. That the owner of a lot upon a street, the grade of which has not been established, must use reasonable care and judgment in making improvements, with a view to a reasonable and proper grade, and the city will not be responsible for injuries to such improvements by afterward grading the street, if the grade by ordinary care could have been anticipated.
    2 That the owner of a lot who erects his building before the establishment of a grade, either by ordinance or by such continuous use of the street as would indicate that the grade was not to be changed, does so at his peril with reference to such future uses or changes as may be made and adopted by the city.
    3. That it does not follow that the owner who erects his building before such establishment of grade, would not be entitled to recover damages; that he does not, by assuming the risk of building in advance of such establishment of grade, become estopped from recovering compensation for damages by reason of subsequent changes; that if he assumes the responsibility, and fortunately anticipates the identical grade afterward adopted by the city, and continuously used as such, the city would still be liable if, by a subsequent change of grade, the owner’s property is materially injured by reason of such change.
    4. That if the grade established and worked up to was a reasonable grade, and demanded for the convenient use of the street by the public, and the buildings upon the owners’ property were constructed before any grade was established, and without reference to any such reasonable grade as might afterward be established by the city, no damages can be recovered for any injury the owner may sustain by the grade in question.
    5. That it is not necessary that the grade established by the city should be an unreasonable grade in order that the property owner may recover damages for injury by reason of the grade.
    These principles we understand to be the law of Ohio.
    II. 1. If west Market street was graded for the first time, in 1876, the plaintiff would-have been entitled to recover damages. If the mill buildings were begun in 1842, and no grade was established until 1873, those facts would show that the plaintiff had exercised that great care, judgment, and discretion which it is claimed should be exercised in making improvements before a foundation is laid for the-recovery of damages.
    2. But the court below did not give the above in charge to the jury, although we insist the court might, without error, have done so.
    The evidence, at the trial, tended to show that the mill owners, by the exercise of more than ordinary care, judgment, and discretion anticipated the grade of 1844, and placed their building in accordance with it, to wit, two and one-half feet above the level of the road..
    And, the plaintiff’s claim is not for damages caused by this grade of 1844, which was thus anticipated, but by a change of this original grade of 1844, after it had stood, for more than thirty years.
    3. The law does not require infallibility in judgment of any man. It does not ask for impossibilities. But it does ask that the property owner shall exercise reasonable care-in making his improvements, with reference to the right, possessed by the corporation to make a reasonable and proper grade. What, however, may be a reasonable and proper grade at the present time, may not be such twenty years-hence. If, therefore, the owner fails to look so far into futurity, but, in the light of surrounding circumstances, makes his improvements with due precaution, he may still recover damages, though the corporation, after a lapse of many years, establishes a grade which is reasonable and proper, but different from the reasonable and proper grade-that would have been established at or about the time the-improvements were made.
    But the current of authority in conflict with the decisions of the Supreme Court of Ohio is not altogether unbroken. See Brown v. Lowell, 8 Mil. 175; O'Conner v. Pittsburgh, 18 Pa. St. 187; in re Ridge Street, Allegheny City, 29 Pa. St. 391; Alexander v. Milwaukee, 16 Wis. 256; Stetson v. Faxon, 19 Pick. 147; Keasy v. Louisville, 4 Dana (Ky.), 154; 2 Kent’s Com. 340, note c.; 14 Conn. 146; Angell on Highways, § 218.
    
      W H. Opson and JS. P. Green, also, fox' defendants in •error.
   McIlvaine, J.

We adhere, with entire satisfaction, to the doctrines enunciated in Cincinnati v. Penny, 21 Ohio St. 499, whex’ein the former cases, decided by this court, in relation to the liability of municipal corporations for damages to adjacent proprietors, by reason of the improvement of streets, were approved.

In that case, while the liability of the municipality was .acknowledged in cases where adjacent proprietors make improvements on the faith of corpox’ate acts, whereby they ;are induced to believe that no future change in the street will be made, it was affirmed that such owners must improve, at their peril, whex'e the xvants of the public, as to the improvement of a street, have in no way been indi•cated or defined by the public authoi’ities.

But inasmuch as the decision in the case of Crawford v. Delaware, 7 Ohio St. 459, was approved in Cincinnati v. Penny, it appears that some doubt has arisen as to the true rule. The doubt arises thus, a proposition in the syllabus of Crawford’s case is: “ That when a grade has not been ■established, the owner of a lot must use reasonable care and judgment in making improvements or ei’ecting buildings with a view to a reasonable and proper grade, and the city will not be responsible for injuries to such improvements by afterward grading the street, if the grade by ordinary •care could have been anticipated.” This proposition must bo true, if the lot-owner, in such case, improves at his peril. It is not on this proposition, however, that the doubt .arises, but on a supposed implication, namely, that if the owner uses reasonable care and judgment, and is, nevertheless, injured by subsequent grading, the municipality will sbe responsible, although the grade subsequently established be a reasonable one. Such implication, if it arises, is, of •course, repelled by the decision in Cincinnati v. Penny.

But it does not necessarily arise, as will be seen by an examination of the case then before the court. The ease was not one for the application of such a doctrine. We do not understand, however, that it was the intention of the court, or of the learned judge who wrote the opinion, to hold that the test of liability, in the supposed case, is the reasonableness of the care and judgment, exercised by the lot-owner, instead of the reasonableness of the subsequent grade of the street. But however that may be, we are now unanimously of opinion that if the subsequent grade, in •such case, be reasonable, or, in other words, if it be established in the reasonable exercise of the authority conferred on the municipality, at the time it is made, then such grade .should have been anticipated by the owner of the adjacent lot, and his improvements should have been made with reference thereto. Whatever latitude there may be in the •exercise of discretion in fixing the grade of a street is lodged in the municipal authorities, and not in the adjacent lot-owners.

While we recognize the general rule to be, that no liability on the part of a municipality for injury to abutting property, by reason of the improvement of a street, exists where such improvement is properly made, yet this rule is subject, as we have seen, to the exception, that where abutting property is improved with refei'ence to an existing street, so graded or improved under the authority of the public .agents having the control thereof, as to indicate, fairly and reasonably, permanency in the character of the street improvement, a liability is cast upon the city or village for injuries resulting from subsequent changes.

And it would seem to follow, as a logical sequence, that, if before, a permanent grade is thus established, the owner of an abutting lot improves the same with reference to a reasonable grade to be established in the future, and his anticipations are realized in the subsequent establishment •of the grade, he should thereafter, in respect to such improvement, be entitled to enjoy the same right in the grade of the street which was thus fairly and reasonably anticipated, as if he had improved his lot after the grade had been so established. Surely the rights of such a lot-owner are equal to those of one who improves his lot after the grade was established.

But while we find the doctrine of liability on the part of the municipality, as maintained in this state, fairly stated in the charge of the probate court, we think the rule of non-liability was not well or clearly put to the jury ? especially in a case where abutting lots are improved before the grade of the street has been established, and the buildings thereon are afterward injured by a reasonable grade subsequently established.

We have had some difficulty in determining the sense, In some instances, in which the words “ grade” and “grade established ” were used, in the charge of the court below. But, without referring to instances more particularly, it is enough to say, that we are of opinion 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 bo 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.

The plaintiff in error requested the court to charge as follows :

“ There being no claims made by the claimant of damages in this case that any part of their lands have been taken, and damages being claimed solely on account of a change of grade, the plaintiff can not recover damages for injury to any part of their property built upon, unless such buildings were built after a grade was actually established, by the town or city authorities, in accordance with such, grade, or that such buildings, if constructed before a grade* was established, were constructed with reference to a reasonable grade, and that the city by establishing an unreasonable grade has caused the injury complained of.”

While this request might properly have been refused, on> the -ground that it omitted the case where a reasonable' grade, which had been afterward established, was anticipated by the claimant of damages, it was nevertheless-given, with this qualification :

“ I give you this as law, except the concluding paragraph,, that the city, by establishing an unreasonable grade, has-caused the injury complained of. I say to you that it is-not necessary for you to find that the present grade is an unreasonable one, for the present time, in order that the plaintiff may recover.”

This qualification was calculated to mislead the jury, in respect to the risk which the owner assumed in improving-his lot before the grade of the street was established. He-was bound to anticipate the future grade of the street, in accordance with the future wants of the public. The question is not, what would have been a reasonable grade at the time the lot was improved, but, was the first grade, indicating permanency, reasonable at the time it was established? The liability of the municipality would attach only when such grade was unreasonable, or if reasonable, by subsequently changing it, to the injury of adjacent buildings.

The plaintiff in error also requested the court to charge as follows:

“ The law presumes and the jury will presume that the grade established and the acts done by the city council were legally established and done, and that the grade established and improvement made were reasonable, until the-contrary appears ;” which request was given, the court adding thereto the following charge : “ That what was a reasonable grade in 1873 might not bave been a reasonable grade in 1844. What would be a reasonable grade in a village of two thousand inhabitants might not be a reasonable gradé for a city of fifteen thousand inhabitants. If the plaintiff built, in 1842, in reference to what would have ibeen a reasonable grade then, and such grade was established, his right to recover would not be determined by tlie fact that the preseht grade is or is not an unreasonable one.”

Admitting the last clause of this instruction to be a correct statement of the law, we-think the whole instruction ■was misleading. Suppose that what would have been a reasonable grade ” in 1842, had not been afterward established, and the jury had found, the grade of 1873 to be the •first grade established, then they might well bave understood, from this instruction, that the city was liable, iif they further found that the grade of 1873 would have been unreasonable in 1842. And thus the abutting proprietor would be relieved from the risk of anticipating a future reasonable grade, under the general rule, without bringing himself within the exception which has been .recognized in this state.

Judgment reversed and cause remanded.  