Mayes, J.,
delivered the following dissenting opinion.
I am unable to concur in the conclusion reached by the majority of the court in the affirmance of this case, and think it should be reversed. There is a very marked difference between the rights which one may get in property by virtue of *51eminent domain proceedings and the rights which he may acquire by express contract. The cases cited by counsel for appellee, announcing the circumstances under which a railroad company may become liable to the owner of land taken by virtue of eminent domain proceedings for damage additional to that which was allowed in the original taking of the land, have no analogy to the case presented for decision by this court. Where land is taken by virtue of eminent domain proceedings, there is a residuum of right left in the owner, to be called into play under certain circumstances where damage has been occasioned in a manner not contemplated in the allowance of-damage in the original proceeding. This may also be true in cases of the acquisition of land by virtue of private contract. But there is no case which holds that every right which an owner may have in respect to the use which is to be made of the land and damage occasioned thereby may not be contracted away. In this case the owner by the • express contract “releases the Yazoo & Mississippi Yalley Railroad Company, its successors and assigns, and also the Louisville, New Orleans & Texas Railway Company, from any and all damage, whether past, present, or future, for the construction and operation of its tracks along said street in front of said property,” and this release is made for and in consideration qf the sum of $745.37 in hand paid to the grantor of the deed. The agreed facts in this case show merely that the appellants raised and elevated the grade of Levee street in front of the property described, to the height of something like three feet from the grade of the street as it was established when the deed was made to the railroad company. The agreed facts further show merely that the elevation as established by the railroad company is in excess of the grade of the street. This is all the testimony in the case, except that it is further shown by agreement that by virtue of this elevation the water was held and dammed up, thereby occasioning damage to the property. Appellees offer in evidence a deed from their grantor which contained the re*52lease above specified, and, on its being objected to, the court sustained the objection and declined to let the deed be read in evidence.
This being all the evidence before the court, a peremptory instruction was given to find for plaintiff and assess such damage as would be directed to be assessed by other instructions. The second instruction tells the jury that “private property cannot be damaged for public use, or guasi-public use, except on due compensation being made to the owner or owners thereof; and if the jury believe from the evidence in the case that defendant raised the grade on Levee street in front of plaintiff’s property they shall assess damage,” etc. The third instruction tells the jury to find for the plaintiff and to assess damage for the raising of the grade of Levee street in front of the property, etc. Thus it is seen, notwithstanding this contract releasing the railroad company, from all liability for any and all damage, whether past, present, or future, in the construction and operation of its tracks along said street in front of said property, liability is made to depend upon the sole fact that the grade of the street had been raised. Liability is not made to depend upon whether or not the raising of the grade of this street was negligently done in any way; but the jury are told peremptorily to find for the jdaintiff if they believe from the evidence that the appellants raised the grade of Levee street. The very thing for which the appellees had received the consideration of this deed was to give the appellants the right to construct and operate its tracks along the street. This right is what the appellants bought and paid for, and they paid to be released from any and all damage accruing to the owner by the exercise of this right. Of course, even under this contract, appellants could not, by negligence in the construction of their road, injure appellees without being liable for damage; but there is no hint in this record that the injury occasioned the appellants was by virtue of any negligence on the part of the railroad, unless it can be affirmed that the mere fact that ex*53ercising the right which they had paid for, and which may have involved the necessity of raising this grade, in itself constituted negligence. I do not think it does per se, and this the opinion of the majority so declares. It is true that the railroad company may not have had the right to raise the grade of the street in so far as the rights of the city were involved, even though they could not have made the right obtained, from appellee by virtue of their contract otherwise useful to them; but this would be a question between the city and the railroad company. Because it would be unlawful for the railroad company to raise the grade of the street in so far as the city was concerned, it does not follow that adjacent property owners may not release the railroad company from private damage occasioned by this unlawful act in so far as individual rights are affected. It may also be true that the city itself could not raise the grade of this street, without being liable to appellee for any damage occasioned by virtue of the raising of the grade of the street; but it does not follow, even though the city should be liable, that appellee might not contract away whatever right he might have to claim damage on account thereof.
•In the case of Y. & M. V. R. R. Co. v. Lefoldt, 81 Miss., 317, 39 So., 459" court="Miss." date_filed="1905-11-15" href="https://app.midpage.ai/document/owens-v-waddell-7989457?utm_source=webapp" opinion_id="7989457">39 South., 459, there is no such question involved as is in the case we are now discussing. In the case referred to supra there was no contract involved whereby the railroad company had been released, for a valuable consideration, from any and all damage, as is the case here. In that case Lefoldt sued the Yazoo & Mississippi Valley Eailroad Company for damages to his property caused by raising the grade of the street in front of him. The facts showed that the railway company raised the street several feet, and that by this act Lefoldt’s property was damaged. The facts further showed that there was a grade of the street established, and the street paved with rock by the city of Vicksburg, and that this was raised by the railroad company by a deposit of gravel, and that it was not necessary to raise the grade in order to keep the roadbed *54in repair. In defense the railway company offered to prove that under an ordinance of the city of Vicksburg it was required of the company that it gravel this street and keep it graveled, and it was further required that the railroad company keep the rails of its track flush on a level with the street; that from time to time the mayor and board of aldermen would notify the defendant company to put gravel on the street, and in pursuance of this notice the company have several times each year spread gravel on the street; and that the effect of this had been to raise the street, and in order to keep the track level or flush with the street they raised their track to correspond with this raised grade, his proof was objected to, objection sustained, and the defendant excepted; and this court, through Justice Cali-ioun, said: “It is not easy to find in this an authority to raise the street or change the grade. But we think the result should be the same if it did. The city must have the power before it can transfer it to appellant, and it did not have the power to do damage to appellee, without previous compensation.” Non constat the court would not have decided this case this way, and held the company liable for damage at the suit of Lefoldt, if Lefoldt had for a valuable consideration made a contract with the railway companies releasing them from any and'all damage in the construction and operation of its tracks along this street; it not being-shown that the railway company was guilty of any negligence in so doing.
The case of Conners v. Y. & M. V. R. R. Co., 86 Miss., 356" court="Miss." date_filed="1905-04-15" href="https://app.midpage.ai/document/conners-v-tazoo--mississippi-valley-railroad-7989370?utm_source=webapp" opinion_id="7989370">86 Miss., 356, 38 South., 320, is easily distinguished from the case we are now discussing, in that the contract between the parties was very different. In the Conners case, where the deed is very much the 'same as the deed here, in which a release is executed for all damage done, -of' which may hereafter be done, in the operation of the railroad Over ánd along the street, we also find the following .provision ■ in the contract, viz.: “This release, however, not- to extend to.:nor permit the unlawful operation of *55said railroad over said street, in the running of cars or otherwise.” The facts in the Conners case show that the railway company filled in the street in front" of the property, raising it several feet above the established grade, thereby preventing-ingress to and egress from plaintiff’s lots; and the court said, through Chief Justice Whiteield : “We think the construction of the Ripley deed is that it is simply a release of all damage caused by the operation of the railroad along the right of way.” The damage here complained of resulted from the unlawful elevation of the street and the track in front of plaintiff’s lots. The express language in the release provides that “this release, however, not to extend to nor permit the unlawful operation of said 'railroad over said street, in the running of cars or otherwise.” In the two cases cited above, though the language of the court seems to make the liability of the railway company depend upon the mere fact that the grade of the street was raised, yet the language of the court must be interpreted in the light of the facts presented by each of the two cases above decided. In the one case — that is to say, in the Lefoldt case— there was no contract at all releasing the railway company from liability, and, of course, it was liable for any damage caused by an unlawful act. The mere raising of the street and the consequent damage to the property being an unlawful act, and the parties having no contractual relation, the company was held liable, because in the original assessment of damages no damage was allowed on the idea that any unlawful act would be done. In the Conners case, though there was a contract, by express stipulation in the deed.it was expressly said that “this release does not extend to nor permit the unlawful operation of said railroad over said street, in the running of ears or otherwise.” The raising of the street several feet being declared by the court to be an unlawful act, and the contract itself expressly stipulating that the railroad company should be liable for any unlawful act, it necessarily followed, and the court held, that the railway company was liable. In this *56case there is no reservation; but in so far as the appellees have any right at all, save for negligence on the part of the company, they have expressly released the railroad company from any and all damage in the construction and operation of its tracks along this street in front of this property, and the evidence failing to show that the appellant has done anything but raise the grade of the street, and not showing any negligence in any way, it is my' view that this case should be reversed. I think the exclusion of the deed was error, and that each and every instruction granted for plaintiff was erroneous.
There is no question presented here of the taking or damaging of private property for public use, save by the express contract of the parties.