The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-12-25

court, Cooley. j., said: The
weight Of authority against this
action is overwhelming" and cites
numerous authorities, both English
and American, in support of the
principles laid down.
The whole current of authority
with the exception to some extent
of the Ohio decisions, to which we
have been referred, supports this
view.
But the Ohio decisions do to some
extent recognize the principle con
tended for by tho defendant
See akron Is. Chamberlain Co.,
81 Ohio st. 335.
In this case the court reviews its
previous decisions and says: ave
are now unanimously of opinion that
if the subsequent grade be reasona-
bic, or in other words, If it be estab-
hshed in the reasonable exercise of
the authority conferred on the mu-
nicipality, at the time it is made,
then such grade should have been
anticipated by the owner of the adj
iacent lot, and his improvements
should have been made with refer
ence thereto. Whatever latitude
there may be in the exercise Of dis
erection in fixing the grade of street
is lodged in the municipal authori-
ties and not in the adjacent lot own
ers. While we recognize the gem
eral rule to be that no liability on
the part of a municipality for injury
to abutting property by reason Of
the improvement of street exists,
where such improvement is properly
made, yet this rule is subject to the
exception that where AUDITING prop
erty is improved with reference to
an existing street, so graded or inn
proved under the authority Of the
public agents having the control
thereof, as to indicate fairly and rea
sonably, permanency in the character
of the street improvement, a liability
is cast upon the city or village for
injuries resulting from subsequent
changes"
We do not understand by the bill
that it is claimed the conversation
with Mr. Wilder operated so as to
bind the government to allow the
street to remain in its then condition,
or that the street was then graded; if
it is so contended it is clear that the
action should be against the govern
ment and not against the individual
officer
1t is urged that the act of grad
ing Of the street is an alteration
within the meaning of Sections 1874
ct seq. of the Civil Code, but upon
careful consideration of such sec
tons we do not think that grading
a street is such an alteration as is
there contemplated
The Legislature has thought fit to
enact a law providing for the estab-
fishing a grade for all etreets in
Honolulu and has given to the com
mission authorized a discretion in
fixing such grades, and it appears to
US that in so doing it must have
the sole authority to vest in
such commission.
1t seems to US that it would be i'm
possible to carry out the law and
would be absurd if we should hold
hat after the commission had de-
,ided upon a general grade for the
,ity, it should be necessary TO i'm
panel a jury to ascertain whether
hey thought the grade of particu-
ar street should be established ac-
,ording to the recommendation Of
he commission. IL they should
negative the necessity, the whole
scheme would be rendered useless.
1t is claimed by counsel for the
appellant on argument, that under
he prayer for general or alternative
elief the court might order jury
o be impannelled, but even if we
hought we had such power the ap-
,ellant would not be entitled to it
mder this general prayer.
9Where alternative relief is prayed
distinct line should be drawn
learly stating the respective facts
N which the inference Of law is to
rise on each alternative view. The
plaintiff is not allowed to allege two
Inconsistent states of fact and ask
elief in the alternative, but he may
tate the facts and ask relief accord
ng to the conclusions of law which
he court may draw from them al
hough this may be presented in two
T more alternatives" Story Equity
Sec. 100.
It appears by the bill that the ap-
,ellant acquired the land on Hale
.auila street in February, 1881. eve
nay observe here that Mr.. Wilder
rent out of Office in August, 1907
In 1880 law was passed $40 pro-
royide for the drainage and sewer
ge of the City of Honolulu" where
y fall powers were given to the
Iinister, with the advice Of the
'rivy Council to construct and make
ewers and drains in the city and to
xecute all works necessary.
It seems to us that the defendant
as not, according to the case made
y the bill, done anything to warrant
be court in restraining him.
Upon principle and authority we
lust hold that the appellant has not
or is liable to sustain any
ljury to warrant the Interference Of