Sharpe, C. J.
In August, 1939, the common council of the city of Detroit declared a public improvement to be necessary iñ the city of Detroit and to take private property for an easement for street purposes. On September 1, 1939, the city of Detroit, under provisions of title 8, chapter 1 of its charter, filed a petition in the recorder’s court to condemn property for the purpose of effectuating the widening and lowering of Michigan avenue.
In this petition a portion of appellant’s property which is located on the northeast corner of Michigan and Bangor avenues was condemned for the purpose of erecting a grade separation. There is no dispute as to the value of the land actually taken or cost of construction of a part of a building taken, nor is it disputed that the property condemned is to be used as part of an abutment for a grade separation structure. On October 9, 1939, the Michigan public service commission entered an order authorizing such grade separation.
During the proceedings for assessment of damages, the trial judge ruled that the jury could not take into consideration the necessity for the improvement, the change in the grade in Michigan avenue; and that damages caused by the grade separation could only be recovered by a subsequent proceeding under the grade separation act. The jury awarded appellant damages in the amount of $1,160.
Grigg Hanna Lumber & Box Company appeals and contends that it was entitled to have both the necessity for the project and the necessity for the taking of its land for the project submitted to the jury. The city of Detroit urges that the necessity for changing the grade of the street is not a part of the condemnation case to acquire lands for a public purpose.
Tbe record shows that tbe city of Detroit approved tbe agreement for tbe grade separation and tbe Michigan public service commission found tbe same to be necessary.
In
Grigg Hanna Lumber & Box Co.
v.
State Highway Commissioner,
294 Mich. 346, 354, we again said:
We have repeatedly held that tbe lowering of street grades is not tbe taking of abutting property without due process of law. * * * Tbe city may proceed to lower tbe grades and then begin appropriate proceedings under tbe grade separation act. 1 Comp. Laws 1929, § 4481
et seq.,
as amended.’
A. M. Campau Realty Co.
v.
City of Detroit,
268 Mich. 417.”
Under tbe above authority there was no necessity for tbe jury to decide tbe question of change of street grade. Appellants next urge that it did not receive its proper amount of damages. Tbe trial court held that appellant must split bis damages: recover part of its direct damages in tbe condemnation case and tbe balance of its direct damages and all damages that flow to tbe remainder of bis land from tbe project under 1 Comp. Laws 1929, § 4514
et seq.,
as amended by Act No. 335, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 4514
et seq.,
Stat. Ann. § 9.1141
et seq.).
Tbe city of Detroit contends that appellant was not entitled to grade separation damages in tbe condemnation case.
At common law an adjacent landowner may not recover damages for injury caused by changing tbe grade of a public street in front of bis premises,
In re City of Detroit,
261 Mich. 278, but tbe rule is now changed by statute and tbe abutting owner is now entitled to recover damages in tbe prescribed statutory proceedings. See Act No. 114, § 9, Pub. Acts 1925, as added by Act No. 335, Pub. Acts 1931 (Comp.
Laws Supp. 1940, § 4521-1, Stat. Ann. § 9.1149). It is our opinion that an adjacent landowner may not recover damages from the change of grade in a condemnation proceeding. His remedy may be found in the grade separation act. Act No. 92, Pub. Acts 1893, as amended.
In
A. M. Campau Realty Co.
v.
City of Detroit,
268 Mich. 417, 420, we said:
“The consequential damages resulting from a subsequent lowering of the grade could not have been considered in the main proceeding. Plaintiff calls our attention to a number of cases where the question of damages for lowering of the grade was considered in condemnation cases or not long after 'the proceedings were concluded. We have repeatedly held that the lowering of street grades is not the taking of abutting property without due process of law.
City of Detroit
v.
Railway Co.,
163 Mich. 229;
Mead
v.
Railroad Co.,
174 Mich. 521. The city may proceed to lower the grades and then begin appropriate proceedings under the grade separation act. ’ ’
In
Grigg Hanna Lumber & Box Co.
v.
State Highway Commissioner, supra,
355, we said:
“Such decisions are predicated upon the well-recognized theory that in congested metropolitan areas with rapidly increasing population and in a dynamic, swift-moving society the interest of safe and rapid travel is sometimes paramount to the interest of the individual.
City of Pontiac
v.
Carter,
32 Mich. 164. Recognizing the hardship caused an individual thereby, the legislature in 1893 enacted a remedial statute (Act No. 92, Pub. Acts 1893 [1 Comp. Laws 1897, § 4229
et
seq.]) allowing compensation-for damages occasioned by a change of grade where any public street or highway was constructed
either across or beneath any railroad. Subsequently, the statute was amended (Act No. 268, Pub. Acts 1909) to eliminate the requirement that the necessity be determined and damages assessed before the construction work was actually commenced (1 Comp. Laws 1915, § 4750
et seq.). Mead
v.
Railroad Co.,
174 Mich. 521. In 1931, the act was extended (Act No. 335, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 4514, Stat. Ann. § 9.1141]) to include ‘the reconstruction of existing grade separations or the alteration of existing grade separations for increased highway or railroad facilities.’ Plans have been prepared and a contract drawn and approved for the construction of the south abutments to the railroad grade separation structures to the east and west of plaintiff’s property. By the terms of this statute, plaintiff is given an adequate remedy at law."
We also have in mind that until the grade of a public street is actually changed the damages resulting therefrom must of necessity be speculative as unforeseen conditions may arise making it imperative to change the original plan.
The legislature, by appropriate legislation, has provided for compensation for injury due to change in street grades and has established a procedure therefor, and appellants must find their remedy therein.
Appellant further contends that it is entitled to a new trial because one of the jurors was sick and absent from deliberations for a period of one week and did not hear the instructions given to the jury by the trial judge at that time.
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Sharpe, C. J.
In August, 1939, the common council of the city of Detroit declared a public improvement to be necessary iñ the city of Detroit and to take private property for an easement for street purposes. On September 1, 1939, the city of Detroit, under provisions of title 8, chapter 1 of its charter, filed a petition in the recorder’s court to condemn property for the purpose of effectuating the widening and lowering of Michigan avenue.
In this petition a portion of appellant’s property which is located on the northeast corner of Michigan and Bangor avenues was condemned for the purpose of erecting a grade separation. There is no dispute as to the value of the land actually taken or cost of construction of a part of a building taken, nor is it disputed that the property condemned is to be used as part of an abutment for a grade separation structure. On October 9, 1939, the Michigan public service commission entered an order authorizing such grade separation.
During the proceedings for assessment of damages, the trial judge ruled that the jury could not take into consideration the necessity for the improvement, the change in the grade in Michigan avenue; and that damages caused by the grade separation could only be recovered by a subsequent proceeding under the grade separation act. The jury awarded appellant damages in the amount of $1,160.
Grigg Hanna Lumber & Box Company appeals and contends that it was entitled to have both the necessity for the project and the necessity for the taking of its land for the project submitted to the jury. The city of Detroit urges that the necessity for changing the grade of the street is not a part of the condemnation case to acquire lands for a public purpose.
Tbe record shows that tbe city of Detroit approved tbe agreement for tbe grade separation and tbe Michigan public service commission found tbe same to be necessary.
In
Grigg Hanna Lumber & Box Co.
v.
State Highway Commissioner,
294 Mich. 346, 354, we again said:
We have repeatedly held that tbe lowering of street grades is not tbe taking of abutting property without due process of law. * * * Tbe city may proceed to lower tbe grades and then begin appropriate proceedings under tbe grade separation act. 1 Comp. Laws 1929, § 4481
et seq.,
as amended.’
A. M. Campau Realty Co.
v.
City of Detroit,
268 Mich. 417.”
Under tbe above authority there was no necessity for tbe jury to decide tbe question of change of street grade. Appellants next urge that it did not receive its proper amount of damages. Tbe trial court held that appellant must split bis damages: recover part of its direct damages in tbe condemnation case and tbe balance of its direct damages and all damages that flow to tbe remainder of bis land from tbe project under 1 Comp. Laws 1929, § 4514
et seq.,
as amended by Act No. 335, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 4514
et seq.,
Stat. Ann. § 9.1141
et seq.).
Tbe city of Detroit contends that appellant was not entitled to grade separation damages in tbe condemnation case.
At common law an adjacent landowner may not recover damages for injury caused by changing tbe grade of a public street in front of bis premises,
In re City of Detroit,
261 Mich. 278, but tbe rule is now changed by statute and tbe abutting owner is now entitled to recover damages in tbe prescribed statutory proceedings. See Act No. 114, § 9, Pub. Acts 1925, as added by Act No. 335, Pub. Acts 1931 (Comp.
Laws Supp. 1940, § 4521-1, Stat. Ann. § 9.1149). It is our opinion that an adjacent landowner may not recover damages from the change of grade in a condemnation proceeding. His remedy may be found in the grade separation act. Act No. 92, Pub. Acts 1893, as amended.
In
A. M. Campau Realty Co.
v.
City of Detroit,
268 Mich. 417, 420, we said:
“The consequential damages resulting from a subsequent lowering of the grade could not have been considered in the main proceeding. Plaintiff calls our attention to a number of cases where the question of damages for lowering of the grade was considered in condemnation cases or not long after 'the proceedings were concluded. We have repeatedly held that the lowering of street grades is not the taking of abutting property without due process of law.
City of Detroit
v.
Railway Co.,
163 Mich. 229;
Mead
v.
Railroad Co.,
174 Mich. 521. The city may proceed to lower the grades and then begin appropriate proceedings under the grade separation act. ’ ’
In
Grigg Hanna Lumber & Box Co.
v.
State Highway Commissioner, supra,
355, we said:
“Such decisions are predicated upon the well-recognized theory that in congested metropolitan areas with rapidly increasing population and in a dynamic, swift-moving society the interest of safe and rapid travel is sometimes paramount to the interest of the individual.
City of Pontiac
v.
Carter,
32 Mich. 164. Recognizing the hardship caused an individual thereby, the legislature in 1893 enacted a remedial statute (Act No. 92, Pub. Acts 1893 [1 Comp. Laws 1897, § 4229
et
seq.]) allowing compensation-for damages occasioned by a change of grade where any public street or highway was constructed
either across or beneath any railroad. Subsequently, the statute was amended (Act No. 268, Pub. Acts 1909) to eliminate the requirement that the necessity be determined and damages assessed before the construction work was actually commenced (1 Comp. Laws 1915, § 4750
et seq.). Mead
v.
Railroad Co.,
174 Mich. 521. In 1931, the act was extended (Act No. 335, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 4514, Stat. Ann. § 9.1141]) to include ‘the reconstruction of existing grade separations or the alteration of existing grade separations for increased highway or railroad facilities.’ Plans have been prepared and a contract drawn and approved for the construction of the south abutments to the railroad grade separation structures to the east and west of plaintiff’s property. By the terms of this statute, plaintiff is given an adequate remedy at law."
We also have in mind that until the grade of a public street is actually changed the damages resulting therefrom must of necessity be speculative as unforeseen conditions may arise making it imperative to change the original plan.
The legislature, by appropriate legislation, has provided for compensation for injury due to change in street grades and has established a procedure therefor, and appellants must find their remedy therein.
Appellant further contends that it is entitled to a new trial because one of the jurors was sick and absent from deliberations for a period of one week and did not hear the instructions given to the jury by the trial judge at that time. In support of this claim it submits an affidavit of one of the jurors stating that she was not present for the particular week mentioned. The trial court in denying the motion for a new trial stated as follows:
‘ ‘ The court further accepts the explanation of the condemnation clerk that the jury assembled during
the absence of the jnror in question, but did not deliberate. Under the circumstances, the remaining 10 would, naturally, meet and wait for the missing juror to appear, and would not be adjourned until it was apparent that the juror would not appear on that day. ’ ’
In
Spencer
v.
Johnson,
185 Mich. 85, 90, we said, “It is the universal rule that the verdict of the jury cannot be impeached by the affidavits of jurors showing misconduct in the jury room.” We also said in that case (p. 91): “An examination of the authorities generally indicates that in order to warrant the granting of a new trial under such circumstances, it must be shown that the separation was prejudicial, or that the facts of the separation were such that a presumption would arise that there was prejudice, in that the juror might have been improperly approached.”
Under the circumstances in this case we find no reason for granting a new trial and the judgment is affirmed, with costs to appellee.
Bushnell, Boyles, Chandler, North, McAllis-ter, and Butzel, JJ., concurred with Sharpe, C. J.