Whitfield, J.
(after stating the facts) : The damages alleged in the first count of the declaration are:
(1) For the change in the grade of the approach to the viaduct adjacent to plaintiff’s lot so as to make the passage way over the viaduct eighteen inches above the entrance to plaintiff’s building, which entrance was constructed so as to be even with the grade of the viaduct before it was raised; (2) for giving up by the defendant of the original street to said railroad companies for other than street purposes in consequence of the original construction of the viaduct; (3) for being excluded from the use and privileges of the street, and ordinary ingress thereto and egress therefrom, and (4) for impairing the [224]*224light and air of the street and depriving plaintiff of such light and air.
As. incidents to the ownership of a lot bordering on a public street there are in addition to the right of passage over the street in common with the public, the private property right of egress and ingress from and to the lot by way of the street and the private property right of light and air which the street affords. The owner of such a lot takes and holds it subject to the right of the State or any duly authorized governmental' agency acting for it, to improve the street for public use by altering the grade of the street, by the erection of a. viaduct thereon or otherwise, for street purposes; and in the absence of legislation or a valid contract the owner has no right of action against a city authorized by law to grade and improve the street for injury to the lot or property thereon, or for the impairment or destruction of the incidental rights of ingress and egress and of light and air which the street affords, because of changes made by the city in the gracle of such street by building or rebuilding a viaduct thereon for the improvement of such street even though such changes in the grade prove inconvenient or expensive to the lot owner in the use of his property, where there is no diversion of the street from its proper street purposes, and where the injury to the lot or property thereon or the impairment or destruction of the incidental rights is a mere consequence from the lawful use or improvement of the street as a highway, and where there is no physical invasion of or trespass upon the lot or property, and no malice, negligence or unskillfulness in the use or improvement of the street for street purposes to the injury of the lot owner. See Dorman v. State, 13 Fla. 538; Selden v. City of Jacksonville, 28 Fla. 558, 10 South. Rep. 457.
[225]*225Any injury to the owner in the use of the street in common with the public is redressed through proper proceedings by public authority. Jacksonville, T. & K. W. Ry. Co. v. Thompson, 34 Fla. 346, 16 South. Rep. 282.
There is no allegation in the declaration that there was malice, negligence or unskillfulness in the use or improvement of the street by the changing of the grade of the viaduct, or that there has been a physical invasion of or trespass upon plaintiff’s abutting property; and, consequently, in view of the above statement of the law, it is clear the plaintiff cannot recover for any element of damage claimed in the first count of the declaration, unless there is a sufficient allegation that the plaintiff has suffered injury to his lot or property thereon or to the right of ingress and egress, and of light and air afforded by the street, because of the diversion of the street by the city to other than street purposes. It is not claimed that the city had no. lawful authority to build the viaduct changing the grade; of the street or to change the grade of the viaduct.
The declaration alleges that while the. plaintiff owued the lot and the defendant was possessed and had control of the adjacent street, the defendant directed, authorized and permitted the building and construction of a viaduct across the street running parallel with the lot; that the plaintiff obtained from the engineer of the defendant a grade by which to construct a building on the lot and by the grade of the viaduct so obtained he constructed and built on said lot a 3-story brick structure in accordance and in harmony with the grade of the viaduct as constructed; that thereafter the defendant directed, authorized and permitted certain railroad companies to tear down, demolish and remove the viaduct so built and to [226]*226reconstruct and rebuild in lieu thereof, and running over -the same territory, a new viaduct, and in consequence ■thereof (the reconstruction of the viaduct) the grade of .the approaches has been raised eighteen inches, and thus .making the entrance to plaintiff's building eighteen inches below the passageway over said new viaduct, and eighteen .inches lower than it was over the first viaduct; and in consequence of the building (not rebuilding) of the viaduct, ■the defendant has given up to the use of certain railroads ■the original street for other than street purposes, and plaintiff has been excluded from the use and privileges thereof, and ordinary ingress thereto and egress therefrom and the air and light thereto have been impaired and plaintiff deprived thereof, and in consequence thereof plaintiff will be compelled to reconstruct and rebuild and .remodel his building so as to conform to the grade of the mew viaduct, and is deprived of ingress and egress to and ifrom said street, and of light and air, and of the use of the original street given up by the defendant for other than street purposes.
The plaintiff cannot recover damages upon the allegation in the first count of the declaration that “in consequence of the building of the said viaduct as aforesaid, the said defendant has given up to the use of the said railroads the original street as aforesaid for other than street purposes, and plaintiff has been excluded from the use and privileges thereof, and ordinary ingress thereto and egress therefrom and the air and light thereto has been impaired and plaintiff deprived thereof,” even if there is a specific claim, for damages under this allegation, for the reason that he alleges that he constructed his building with reference to the use of the original viaduct and not the original street as a means of ingress and [227]*227egress and as a passagewajr, thereby consenting to the erection of the viaduct in lieu of the street so far as it affects this complaint. There is no direct and positive allegation that the rebuilding of the viaduct was in consequence of the diversion of the original street to other than street purposes. There is a claim for damages for “the giving up by said defendant to said railway companies to their use and for other than street purposes as aforesaid;” but this is indefinite and insufficient. If the rebuilding of the viaduct, or the change of the grade of the approach to it, was the result of or in consequence of the diversion of the original street to other than street purposes to the injury of plaintiff’s private property rights, it is not sufficiently alleged so as to be the basis for the recovery of damages therefor.
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Whitfield, J.
(after stating the facts) : The damages alleged in the first count of the declaration are:
(1) For the change in the grade of the approach to the viaduct adjacent to plaintiff’s lot so as to make the passage way over the viaduct eighteen inches above the entrance to plaintiff’s building, which entrance was constructed so as to be even with the grade of the viaduct before it was raised; (2) for giving up by the defendant of the original street to said railroad companies for other than street purposes in consequence of the original construction of the viaduct; (3) for being excluded from the use and privileges of the street, and ordinary ingress thereto and egress therefrom, and (4) for impairing the [224]*224light and air of the street and depriving plaintiff of such light and air.
As. incidents to the ownership of a lot bordering on a public street there are in addition to the right of passage over the street in common with the public, the private property right of egress and ingress from and to the lot by way of the street and the private property right of light and air which the street affords. The owner of such a lot takes and holds it subject to the right of the State or any duly authorized governmental' agency acting for it, to improve the street for public use by altering the grade of the street, by the erection of a. viaduct thereon or otherwise, for street purposes; and in the absence of legislation or a valid contract the owner has no right of action against a city authorized by law to grade and improve the street for injury to the lot or property thereon, or for the impairment or destruction of the incidental rights of ingress and egress and of light and air which the street affords, because of changes made by the city in the gracle of such street by building or rebuilding a viaduct thereon for the improvement of such street even though such changes in the grade prove inconvenient or expensive to the lot owner in the use of his property, where there is no diversion of the street from its proper street purposes, and where the injury to the lot or property thereon or the impairment or destruction of the incidental rights is a mere consequence from the lawful use or improvement of the street as a highway, and where there is no physical invasion of or trespass upon the lot or property, and no malice, negligence or unskillfulness in the use or improvement of the street for street purposes to the injury of the lot owner. See Dorman v. State, 13 Fla. 538; Selden v. City of Jacksonville, 28 Fla. 558, 10 South. Rep. 457.
[225]*225Any injury to the owner in the use of the street in common with the public is redressed through proper proceedings by public authority. Jacksonville, T. & K. W. Ry. Co. v. Thompson, 34 Fla. 346, 16 South. Rep. 282.
There is no allegation in the declaration that there was malice, negligence or unskillfulness in the use or improvement of the street by the changing of the grade of the viaduct, or that there has been a physical invasion of or trespass upon plaintiff’s abutting property; and, consequently, in view of the above statement of the law, it is clear the plaintiff cannot recover for any element of damage claimed in the first count of the declaration, unless there is a sufficient allegation that the plaintiff has suffered injury to his lot or property thereon or to the right of ingress and egress, and of light and air afforded by the street, because of the diversion of the street by the city to other than street purposes. It is not claimed that the city had no. lawful authority to build the viaduct changing the grade; of the street or to change the grade of the viaduct.
The declaration alleges that while the. plaintiff owued the lot and the defendant was possessed and had control of the adjacent street, the defendant directed, authorized and permitted the building and construction of a viaduct across the street running parallel with the lot; that the plaintiff obtained from the engineer of the defendant a grade by which to construct a building on the lot and by the grade of the viaduct so obtained he constructed and built on said lot a 3-story brick structure in accordance and in harmony with the grade of the viaduct as constructed; that thereafter the defendant directed, authorized and permitted certain railroad companies to tear down, demolish and remove the viaduct so built and to [226]*226reconstruct and rebuild in lieu thereof, and running over -the same territory, a new viaduct, and in consequence ■thereof (the reconstruction of the viaduct) the grade of .the approaches has been raised eighteen inches, and thus .making the entrance to plaintiff's building eighteen inches below the passageway over said new viaduct, and eighteen .inches lower than it was over the first viaduct; and in consequence of the building (not rebuilding) of the viaduct, ■the defendant has given up to the use of certain railroads ■the original street for other than street purposes, and plaintiff has been excluded from the use and privileges thereof, and ordinary ingress thereto and egress therefrom and the air and light thereto have been impaired and plaintiff deprived thereof, and in consequence thereof plaintiff will be compelled to reconstruct and rebuild and .remodel his building so as to conform to the grade of the mew viaduct, and is deprived of ingress and egress to and ifrom said street, and of light and air, and of the use of the original street given up by the defendant for other than street purposes.
The plaintiff cannot recover damages upon the allegation in the first count of the declaration that “in consequence of the building of the said viaduct as aforesaid, the said defendant has given up to the use of the said railroads the original street as aforesaid for other than street purposes, and plaintiff has been excluded from the use and privileges thereof, and ordinary ingress thereto and egress therefrom and the air and light thereto has been impaired and plaintiff deprived thereof,” even if there is a specific claim, for damages under this allegation, for the reason that he alleges that he constructed his building with reference to the use of the original viaduct and not the original street as a means of ingress and [227]*227egress and as a passagewajr, thereby consenting to the erection of the viaduct in lieu of the street so far as it affects this complaint. There is no direct and positive allegation that the rebuilding of the viaduct was in consequence of the diversion of the original street to other than street purposes. There is a claim for damages for “the giving up by said defendant to said railway companies to their use and for other than street purposes as aforesaid;” but this is indefinite and insufficient. If the rebuilding of the viaduct, or the change of the grade of the approach to it, was the result of or in consequence of the diversion of the original street to other than street purposes to the injury of plaintiff’s private property rights, it is not sufficiently alleged so as to be the basis for the recovery of damages therefor.
The second count of the declaration “alleges each and every the allegations of the first count, and further declares that acting under the permission ánd authority of the defendant as aforesaid, the said companies as aforesaid were negligently, unnecessarily and unreasonably slow in the construction of the said viaduct and the demolishment of the old, and were a year longer in the construction of the new and the demolishment of the old viaduct than was reasonably necessary, and unnecessarily and negligently delayed the completion of said new viaduct for at least one year, whereby the plaintiff was prevented from leasing his said building on said lot to divers persons who wanted to lease the same for a period of five years, but after negotiations for and considering the said lease declined and refused to take the same, solely because of the aforesaid delay in the building and completion of said new viaduct, in consequence whereof plaintiff lost money,” &c. In the first count it is alleged that [228]*228the defendant “directed, authorized and permitted” certain railroad companies to build and rebuild the viaduct. The second count alleges that “acting under the permission and authority of the defendant as aforesaid, the said companies aforesaid were negligently, unnecessarily and unreasonably slow in construction,” &c. There is no sufficient allegation fixing the responsibility for the alleged delay upon the defendant city, and the parties alleged to have been “negligently, unnecessarily and unreasonably slow” in constructing the viaduct are not before the court in this complaint.
Sufficient facts are not alleged in either count of the declaration to constitute a cause of action against the defendant, therefore the third ground of the demurrer addressed to both counts being good, the demurrer was properly sustained. The plaintiff declining to amend, final judgment was correctly entered for the' defendant, and such judgment is here affirmed.
Shackleford, C. J., and Cockrell, J., concur;
Taylor, Hocker and Parkhill, JJ., concur in the opinion.