The herald., 1893-12-12
FIRST STREET WILL Be CUT.
A Most Important Decision
Rendered Yesterday.
Mrs. Francisco W. de Shepherd Loses
Her Suit.
Judge Van Dyke Thinks the Cut Will
Not IDJure Her Property and He
Accordingly Modifies the
IDjunction.

In the case of Mrs. Francisco W. d,
Shepherd vs. d. F. Donegan ct al,
Judge Van Dyke yesterday ordered
modification of the judgment, the fol-
lowing decision being rendered.
The original proceedings on the part
OF the city in this case contemplated the
grading Of all First street between Hill
street and Grand avenue and assessing
the costs thereof upon the abutting
property. The plaintiff, who OWNS the
lot upon the north side between Hill
and Olive streets, commenced this suit
to restrain the city from carrying out the
contemplated improvement upon the
ground that the same would damage her
property and that che had not been COM
pensated therefor. Upon the showing
then made on behalf of the plaintiff this
court granted a temporary injunction.
The city, one OF the defendants,
by supplemental answer has
abandoned its original purpose
of grading the whole street, and sets
forth it's intention simply to grade the
south half of the street, between Hill
and Olive street, the street between
Olive and Grand avenue having mean
time been granted.
The temporary Injunction was granted
in favor Of the plaintiff on the ground
that the cutting down of First street
the whole width, as first proposed,
would cause damage to the plaintiff by
the caving or breaking away of the sub
stance of the soil of her premises. The
grading of the south half, however, as
now proposed, it is claimed would leave
between the cut and the property OF
plaintiff sufficient width to serve as a
retaining wall to prevent any damage to
plaintiff in the respect mentioned.
On the trial of the case an equal num-
Der of witnesses were produced on each
side. The question at issue is therefore
whether the grading as now proposed
would cause damage to plaintiffs prop
erty, and that is the sole question to be
considered. Inetead of the preponder-
ance being in favor of the plaintiff on
this issue, 1 am of opinion that the
weight of evidence is against her, and
that it will not cause any damage.
The street in its present condition
cannot be used for any purpose, and the
only damage that could be caused would
be to remove the support necessary to
retain the lot in its present condition,
nAN 90 uUueou, pi0pouuOIehCo VI VIC
testimony is to the effect that one-hslf
the street would be sufficient to prevent
any caving of the premises belonging to
the plaintiff. The proceeding now is to
grade the south half of the street at the
expense of the city, without an assess-
ment; consequently the objection on
the part of the plaintiff that the pro-
ceeding is void under the law as for an
assessment cuts no figure.
From the testimony and an inspection
of the premises it occurs to the court
that it would be better to terrace the
northern half instead of allowing it to
remain the full height, and ths city will
be permitted to amend it's answer and
proceed in that way if it sees proper.
The injunction will be modified to
permit the city at its own expense to
grade the south half of First street, be-
tween Hill and Olive streets, to the Off
cial grade, by allowing the north half to
remain, or terrace the same in such
manner as not to cauee any damage to
the property of the plaintiff by with.
drawing the natural support from the
premises in question.