
    Britton A. Hill, Appellant, vs. City of St. Louis, Respondent.
    1. Damages, suit for against municipality — Streets—Qfiange of grade, etc., — Petition — Allegations—Demurrer.—In suit for damages against the ciiy of St. Louis, for removing the macadamizing and lowering the grade of the streetadjoiniug plaintiff's lot, an allegation in the petition that defendant contriving to injure plaintiff wrongfully, etc., committed the injury, sufficiently conveys the inference that the injury was unjustifiable. If the acts were committed in the exercise of lawful authority, that fact should be set up by answer.'
    
      •Appeal from Si. Louis Circuit Court.
    
    
      Hill & Bowman, for Appellant.
    
      E. P. McCarty, City Counsellor, for Respondent.
   Wagner, Judge,

delivered the opinion of the court.

In substance the petition stated that the plaintiff in 1865, was the owner of a certain lot, described, on Arsenal street in the city of St. Louis, and that in 1867, the city established the grade of that street about three feet below the surface of plaintiff’s lot, and improved the same accordingly ; that plaintiff claimed property and an easement in the street so established and improved. And there was a further allegation, which constituted the gist of the action — that in 1869 or 1870, the defendant, wrongfully contriving to injure the plaintiff and deprive him of his property, and of his easement and way, did by her officers and agents enter upon said street on the line of plaintiff’s lot, and then and there dig away the macadamizing and the street, as graded and established, to the depth of twelve feet or more below the grade as established, and that his casement and property in the street was destroyed to his damage, etc.

To this petition defendant interposed a demurrer, and assigned as causes : that it did not appear that the grading was done either negligently or unskillfnlly, or that plaintiff’s alleged damage was occasioned by any negligence or unskillfulness of defendant or its agents; that it did not appear that the grading or digging was anything but the exercise by defendant, through its agents, of its lawful power over the streets, or that the alleged injury to the plaintiff was occasioned by anything other than the proper exercise of such lawful public power. The court sustained the demurrer, and the plaintiff refusing to amend his petition, judgment absolute was rendered against him. The petition stated a good cause of action, and the court erroneously sustained the demurrer. The allegation was that defendant, contriving to injure plaintiff, wrongfully committed the injury complained of. The inference is, from the face of the pleading, that it was an unjustifiable and wanton injury. If the acts were committed in the exercise of a lawful authority in changing the grade, the defendant should have raised that defense by answer. As it is, the plaintiff was turned out of court on a demurrer which set np different causes from those alleged in his petition.

Wherefore, with the concurrence of the other judges,

the judgment will be reversed and the cansé remanded.  