Mrs. Smith and her husband brought this action against the city of St. Joseph for damages which they allege were done to certаin lots belonging to Mrs. Smith, in block 11, in the St. Joseph Eastern Extension Addition to said city, by grading Twenty-third street on which said lots abutted. 'Plaintiffs recovered judgment for $250 from which the city has appealed.
The city relied, for its defense to the action, upon a general denial, and upon the following facts, which were admitted: First, that the grading complained of was donе in reducing the street to an original or first grade, which was reasonable and constructed in a prudent manner; second, that nо money had been appropriated to pay any claim for damages incident to said grading. The assignments оf error will be noticed in their order.
In other words, they assume that the constitution of 1875 does not give an action for damages occasioned to property by grading the streets for the first time;
We are relieved of further discussion of the question by the very satisfactory and convincing decision in Davis v. R’y Co.,
The instruction as asked by defendant was in these words:
“5. Even if the .jury should find that the plaintiffs may have been injured by the grading of the street in front of their propеrty, yet, as against such damage, if any, you are instructed to deduct such special benefits, if any, as have been conferred upon plaintiffs’ said lots by the grading of Twenty-third street; and if such benefits are, in the opinion of the jury, equal to, оr in excess of, plaintiffs’ damage, then your verdict must be for the defendant.”
5. “Even if the jury should find that the plaintiffs may havе been injured by the grading of the street in front of their property, yet, as against such damage, if any, you are instructed to deduct such special benefits, if any, as have been conferred upon plaintiffs’ said lots, by the grading of Twenty-third streеt fin front of said lots; ’ and if such benefits are, in the opinion of the jury, equal to, or in excess of plaintiffs’ damage, then yоur verdict must be for the defendant.”
"We do not thinks the words inserted by the court altered the meaning of this instruction. Learned сounsel contend that they had the effect to limit the special benefits to such benefits only as resulted to the property from the grading of the street directly in front of said lots. We think this is true, but it does not, therefore, constitute error. Thе city can not set off the general benefits that would inure to plaintiffs in common with all property owners from the grading of this street. The property owner is confined to the damage specially done to his lot and the benefits to be offset are those that grow out of the improvements which cause the damage to his property. He is not chargeable with those general benefits which he would derive in common with other landowners along said street by hаving a well graded street leading to or from his property.
However plausible and reasonable it may appear that he ought not to recover damages, if, in common with all other abutting proprietors, his property has been enhanced in value, by the general improvements, it is now settled in this state that he is not chargeable
The fаct is that defendant succeeded in getting an instruction from the court more favorable to it than is warranted by our decisions. The court instructed the jury that the measure of damages was the difference between the market value of the property before the grading, and the market value after the grading, caused by said grading. Under this instruction, the jury might hаve well considered that the grading of this street along its whole length increased the value of every foot of grоund abutting on it, far in excess of all special damages resulting to any lot on it, and in this manner have found there was no damage to plaintiffs. 'The rule announced in the instruction, it seems to me, has much to commend it, but it has been determined otherwise by this court in banc without dissent and to its decision, I yielded my own individual opinion, at the time. It is clear, however, that no harm сould have resulted to defendant from this too favorable instruction which defendant itself procured. The judgment is affirmed.