Since Soon Duck Kim forecloses parties similarly situated to Plaintiffs from prevailing against a municipality, it remains to be seen whether those parties would be more successful bringing suit against the sellers of such encumbered property. Generally, one of the public rights in a highway is that of changing the grade as public necessity and convenience may periodically require. A municipality's power to further grade and improve streets is continuing, and because municipalities hold streets in trust for the public, changes to the grade should be contemplated. See also Thompson v. Stemming from these principles is the general rule that the owner of property abutting a street cannot recover damage to property caused by a change in the grade of the street under proper municipal authority.
Any damage resulting from such a change is considered damnum absque injuria , loss without injury.
In the above cited cases except Thompson , the increases in grade of the relevant streets did not amount to a taking of a private owner's property right for which compensation was due. In Thompson , however, a railroad company that raised the elevation of a street was not cloaked with governmental immunity and therefore liable to individuals whose property was damaged by the change. In regard to the issue of taking in the face of state or local statutes, case law supports the holding in Soon Duck Kim . Owners purchase real property subject to existing statutory restrictions.