#### The City of Akron *v.*Huber.

*Improvement of street*— Injuries *caused by grade*— Municipality *not liable to owners of abutting property, when.*

The doctrine recognized in this state respecting the liability of a municipality for injuries *to*improved abutting property resulting from changes in grades of streets does not extend such liability to a case in which no grade has been established prior to the improvement of the property and where the grade subsequently established is not unreasonable. *(The City of Akron*v. *The Chamberlain Company,*34 Ohio St., 328, approved and followed.)

(No. 10389

Decided June 26, 1908.)

Error to the Circuit Court of Summit county.

Huber brought suit in the court of common pleas to recover from the city of Akron damages alleged to have been sustained by him by reason of the change of the grade in South street, upon which real estate owned by him abuts. Upon the trial in- the court of common pleas the cause was submitted to a jury upon the allegations of the *373•pleadings, the admissions of the parties in open court made for the purposes of the trial, the evidence offered by Huber, the city offering none, and the instructions given by the trial judge. The material facts so presented'were as follows: Huber purchased his lot of 35 feet by 153 feet in 1887. It was not, at that time, within the corporate limits of Akron, but in Coventry township. The street had been opened as a public highway in 1817, and had been so used continuously since that date. In 1887 Huber erected his house upon the lot. The roadway and Huber’s lot became a part of the city of Akron by extension of its corporate limits in 1889. The cutting down of the street in front of his premises occurred in 1902, prior to which date no grade had been fixed, either .by action of the public authorities, or by the construction of a roadway. A little less than one hundred feet of the traveled way, including the portion upon which Huber’s lot abuts, was upon continuous outcropping rock, which had always determined the grade, upon which the road was used. Its surface was irregular and "the grade of the way steep. The ground in the vicinity was •rugged, a portion of Huber’s lot being several feet below the present grade of the way. The improvement of the street was made to adapt its grade and condition to the necessities of increasing travel. It consisted in removing the sandstone to a line a little less than three feet below the front portion of Huber’s lot, leaving it still higher than other portions of his lot. By reason of this change Huber was put to some expense in changing the way from the street to his lot, and in con*374structing a low retaining- wall to keep in place' such soil as was there or he might place there. On this undisputed state of facts , the court gave to the jury some instructions, refusing others, all of which will be sufficiently adverted to in the opinion. The jury returned a verdict in favor of the city. A motion for a new trial was made and overruled, and judgment was entered upon the verdict. Huber thereupon filed a petition in error in the circuit court where the judgment of the court of common pleas was reversed. This proceeding in error is for the reversal of the judgment of the circuit court.

*Mr. Clyde F. Beery,*city solicitor, for plaintiff in error.

*Messrs. Tibbals, Frank & Ream,*for defendant in error.

Shauck, J.

The mandate of the circuit court does not specify the ground upon which it reversed the judgment of the court of common pleas as is require’d by Section 6709, Revised Statutes. But it does not seem necessary to vacate the judgment and remand the cause to the circuit court for the performance of that duty since, the record places us in possession of the uncontroverted facts and enables us to render a judgment which will end the controversy. The city introduced no evidence upon the trial, and, according to the record, there was presented in the trial court a case which required, so far as the right to recover was concerned, nothing but an application of the law to facts conclusively established.

*375We learn from the briefs that the courts below differed, as counsel now differ, respecting- the liability of municipalities in cases of this character, and especially respecting former decisions by the courts of' this state upon the subject, the cases being cited in the briefs. The doctrine of municipal liability invoked in the case, is, as is well known, peculiar to Ohio, but it does not seem that since the decision of *City of Akron*v. *The Chamberlain*Company, 34 Ohio St., 328, that peculiar doctrine can be so extended as to embrace the case here presented. The material facts are, that when the plaintiff made his improvements no grade for the highway had been established, either by actual construction, or by any declaration of any public authority. Until what is alleged to have been the change of grade in 1902, the way at this point had followed the natural surface of the rock without any change whatever. The grade, for the first time authoritatively established in 1902, was reasonable in view of the necessities of public travel. All the facts presented to the plaintiff below, when he made his improvement, admonished him that when travel should be provided for, the removal of a portion of the rock would be necessary. If, when he made his improvement, he was not of the opinion that he' would prefer that his lot should be two or three feet above the street, he did not improve with reference to the subsequent establishment of a reasonable grade. Upon this state of facts the case of *Akron*v. *The Chamberlain Company*is conclusive, and the distinct announcement of the law in the second proposition of the syllabus in that case, together with the able *376exposition of the law by Mcllvaine, J., leaves no occasion for further comment here.

No consideration whatever seems to be due to the fact that Huber’s lot was outside the city when he made his improvement, since no grade had ever been established in any mode by any public authority prior to the making of Huber’s improvements. It seems entirely clear, therefore, that the common pleas judge should have avoided the chance of a mis-trial by directing the jury to return a verdict in favor of the city. But such a verdict was returned by the jury, and, as the plaintiff below had no cause of action, no error prejudicial to him could have been committed in any instruction given by the trial judge.

*Judgment of the circuit court reversed and that of the common pleas affirmed.*

Price, C. J., Crew, Summers, Spear and Davis, JJ., concur.