EASEMENTS.

[Defiance Circuit Court,

January Term, 1891.]

Seney, Beer and Moore, JJ.

#### JOHN McNULTA, RECEIVER, ETC. v. JOSEPH RALSTON.

1. Abutter’s Right of Access is Property.

The easement of access from the street to an abutting lot. and from the lot to the street, is property within Art. 5 of the amendments of the constitution of the United, States, and within section 19, Art. 1 of the constitution of this state.

2. Railway Company is Bound to Make Safe Street Crossings.

Where a railroad crosses streets within the limits of a municipal corporation, the railroad company is bound to construct and maintain safe and sufficient crossings, and the approaches thereto.

3. Must Construct Bridge and Approaches where on a Different Level.

When the street and railroad track are not upon the same level, and the street crosses the railroad track by means of a bridge, the railroad company is bound to construct the bridge, and the approaches thereto.

4. Railway Responsible for Injury in Throwing up Embankment Although Ordinance Authorized the Work.

If, in constructing approaches to t-he bridge, the railroad company is compelled to throw up an enbankment in the street to such height as to cause an injury to the easement Of access to an abutting lot, the railroad company will be liable to the owner in an action for damages for the injury done, and this, although the council of the municipal corporation has, by ordinance, prescribed the height and dimensions of the bridge, and the height and grade of the approaches thereto

Error to the Court of Common Pleas of Defiance county

BEER, ].

(orally.)

Joseph Ralston, the plaintiff in error, filed his petition in the court of common pleas of this county against John McNulta, as receiver of the Wabash Railway Co., in which he avers that he is the owner of lot No. 16 in the city of Defiance, which is bounded on the East by the railroad company’s right of way, on the north by a street called Brunersburg road, which has been for more than fifty years a public highway, much traveled; that prior to the committing of the grievances complained of the said lot had upon it a dwelling house and other structures. In 1888 and 1889 the defendant, while acting as receiver, caused to be constructed upon said street, over its railway, a very high bridge, and caused to be constructed approaches thereto in said street, which of necessity required a very high embankment in front of plaintiff’s lot. thereby greatly obstructing plaintiff’s means of access from said lot to said street, and from said street to said lot, by reason whereof said lot has been greatly depreciated in value, and he prays damages in the sum of $2,500.

To this petition, the receiver, for answer, says it is true he caused the erection and construction of said bridge and the approaches thereto; that the same was authorized by the city council of the city of Defiance by ordinance, which in terms permitted said bridge and approaches to be made, and prescribed the height and dimensions of said bridge and said approaches thereto, and said bridge and approaches were erected and constructed in pursuance of the authority conferred by said ordinance, and in all respects in conformity thereto; wherefore the defendant is not liable in respect to the matters and things complained, of by Ralston. For a second defense he says, adopting all the allegations of his first defense, that the improvement in the street is only four or five feet higher than it has been for the last twenty years, and the plaintiff’s lot has not been damaged thereby. Ralston demurred to the first defense. The court sustained the demurrer, to which the receiver excepted

*164On the issues made by the petition and the second defense the case was tried to a' jury, and a verdict rendered for Ralston. The receiver moved for a new trial; his motion was overruled, and the court rendered judgment for Ralston upon the verdict. To reverse the judgment of the court of common pleas the plaintiff in error has filed his petition in error in' this court.

It is assigned for error here, as it was urged as grounds for a new trial, that the court erred in admitting and excluding evidence; in sustaining the demurrer; in refusing to charge, as requested, and in the charge given; it is also claimed that the verdict is against the evidence '

We find no error in the admission of evidence, objected to by the receiver, and without wasting time, it is sufficient to say that the verdict is not against the evidence; that is, there is evidence to support the finding of the jury. It the demurrer to the first defense alleged in the answer was properly sustained, there was no error on the part of the court in excluding evidence offered by the receiver, nor in refusing to charge as requested, norm ihe charge given to the jury; for all these alleged errors arise, on the ordinance set out in the first defense. It is ■claimed by the plaintiff in error that the facts set out in the first defense in his answer are a complete bar to a-recovery on the part of Ralston; that he holds his property subject to the rights of the city to change the grade of the streets upon which it abuts; that he cannot recover damages for changes in the streets, growingout of the establishment of a grade, unless the city had previously established another grade and he had made valuable improvements to correspond with such previously established grade, and in such case, he must recover from the city, and not from the person changing the street; that the city in adopting the ordinance set out in the answer, established a grade, and before the plaintiff can be entitled to recover he must show that the grade so established is a change of the previously established grade, and that he'made improvements in conformity with such previously established grade; and then, ,i.n that case, that the city and not the plaintiff in error would be liable.

It is undoubtedly the law that a lot owner in a municipal corporation holds his lot, abutting upon'a highway, subject to the right of the municipality to establish the grade of such highway, and to construct the highway in conformity with such established grade; if the lot be damaged thereby, he will not be entitled to recover damages for the injury he may sustain. No doubt that is the law in this state; but after a highway has been constructed upon a grade established by a municipal corporation, if a lot owner improves his lot in conformity to the grade so established and the highway so made, then if the grade be altered and the abutting property be damaged by such alteration, the owner will be entitled to damages, and the municipal corporation will be liable therefor.

In the ordinance set out in the answer, the city did not order a change of the grade; it authorized the receiver to raise the bridge over the railway, and make approaches thereto, so as to conform to the bridge so raised.

Section 3324, Rev. Stat., requires railroad companies to construct and maintain safe and sufficient crossings over every highway where their track crosses the highway. If the railroad were being located, and the crossing's made for the fiist time, the railroad company would be bound, under sec. 3324, to build a bridge ■ and construct approaches thereto. If the city prescribed by ordinance the height of the bridge, the dimensions, and the grade of the approaches, still under this section the railroad company would be bound to make the same. In such case the filling of the street in front of Ralston's property would be rendered necessary by reason of the location of the railroad; in other words, such filling of the street would be a part of the crossing, which the railroad company is bound to make and maintain, and the damage, if any resulted to the lot. would flow directly from the construction of the railroad and its crossings The easement of access to Ralston’s lot is his private property, within the mear in ■ of the constitution, and for, damages thereto by the location and construction of the railroad and the bridge and approaches thereto in front of his lot, he is entitled to recover. If, after the *165location of the road and the erection of the bridge and the approaches.thereto in front of his lot, the bridge and approaches thereto be raised, and thereby such easement suffer additional damage, he can recover for such additional damage. Hatch v. C. & I. R. Co., 18 O. S., 92.

Osborn & Smith, for plaintiff in error.

B. B. Kingsbury, for defendant in error.

It makes no difference that the city consents to the change of the grade, or, that for the benefit of the railroad company, the public, or both, the city consents that the injury may be done; it does not do the injury. The law requires the railroad company to do the injury; that is, it requires it to make and maintain the crossing, and if the crossing must be so constructed as to injure the easement of Ralston it is the misfortune of the railroad company that it must make him whole for the injury that it is compelled to inflict upon him.

With these views the majority of the court are of the opinion that the court did not err in sustaining the demurrer, or excluding the evidence offered by the plaintiff in error, or in refusing to charge as requested, or in the charge as given.

Seney, J., dissents.

The judgment of the court of common pleas will be affirmed.