
    CITY OF ROME v. HARBOUR, administrator.
    No. 11581.
    March 10, 1937.
    
      Maddox & Griffin, for plaintiff.
    
      W. B. Mebane and Maddox, Matthews & Owens, for defendant.
   Beck, Presiding Justice.

Eaymond Harbour as administrator of the estate of Moss Harbour, deceased, brought this action against the City of Borne, alleging that the deceased in his lifetime was the owner of certain property in the City of Borne; that Moss Harbour died in January, 1934; that in 1932 the City of Borne “raised the'street and sidewalk in front of the property approximately two feet,” causing water to pond on the property; and “that on account of the facts set forth the value of said lots has been decreased in the sum of $1000.” Then followed a recital of particular damage because of consequent rotting of floors and foundations to houses on the lots and loss of rents and the negligence of the city in failing to put in drains. A general demurrer to the petition was sustained. This demurrer pointed out that the alleged acts occurred before the death of the intestate, and that any cause of action abated with his death.

The Court of Appeals properly held that it was error to sustain the demurrer. The action was based on the provisions of the constitution, and not on the tort. It did not die with the death of the owner of the property taken; and it was otherwise good as against a general demurrer.

Judgment affirmed.

All the Justices concur, except Atldnson and Bell, JJ., who dissent.  