Beard, Chirr Justice.
The defendants in error, Murphy and Ready, brought this action against the plaintiff in error, The City of Rawlins, to recover damages to their property, alleged to have been sustained by reason of the grading of certain streets adjacent thereto, in pursuance of an ordinance of the city changing the grade of said streets as previously established. The cause was tried to the court, without a. jury, resulting in a judgment in favor of said plaintiffs below in the sum. of' $3,750, with eight per cent interest from June 29, 1906, and costs. The city brings the case here on error.
[249]*249The plaintiffs alleged in their petition in the District Court, in substance, that on August 12, 1899, they were and ever since have been the owners of certain lots in said city, situated on the southwest corner of the block, and upon which there was and is a two-story stone business building, Front street being adjacent to said property on the south, and Fifth street adjacent thereto on the west. That during all of said time Front street and Fifth street were public highways of said city, and as such highways were in the lawful custody and control of said city. That prior to the purchase of said property by plaintiffs the city had established the grades of said streets; and that about August 29, 1900, new grades for said streets were established by said city, and from about July 15, 1901, up to and including the month of September, 1902, said city, without, the consent of plaintiffs, changed and lowered the surface level of said Front and Fifth streets adjacent to said premises, thereby leaving said building high above the level of said streets. That by reason of such grading said premises were depreciated in value in the sum of $7,600; and that by reason of the store occupied by plaintiffs in .said building being rendered inaccessible on account of said grading, plaintiffs were damaged in the sum of $2,400. That on May 31, 1906, plaintiffs presented in writing to the 'mayor and board of trustees of said city their claim for said damages, which claim has never been allowed.. They prayed judgment for $10,000.
In its answer the defendant city admitted that Fifth street adjoining said property on the west was a public highway of said city; but denied that the so-called Front street was a public highway of said city, or in the custody or lawful control of the municipal authorities of said city, but that it was a part of the right of way of the Union Pacific Railroad Company. Admitted that after the establishment of the grade in 190D, some grading was done adjacent to said property, but denied that any grading was so done after February 1, 1902, and denied that the grading so done [250]*250lowered the level of the street adjacent to said property below the grade established in 1887, except for a short distance opposite the rear of said premises on Fifth street; and denied generally the other allegations of the petition. For a second defense, the defendant alleged that no grading had been done adjacent to said premises after February 1, 1902, and pleaded the statute of limitations. Plaintiffs by their reply denied the new matter set up in the answer.
Upon the issues thus joined, the court found that plaintiffs were entitled to recover nothing by reason of damage to their property caused by the grading of Front street; that said Front street, where it is adjacent to the property of plaintiffs, is situated entirely-upon the right of way of the Union Pacific Railroad Company; that plaintiffs were entitled to recover from the defendant $3,750, together with eight per cent per annum interest thereon from June 29, 1906, as damages to said property caused by the grading done on Fifth street, the same being the amount of depreciation in the market value of the property caused by such grading.
Counsel for defendants in error have argued at some length the question of the liability of the city for the grading of Front street. But they are not in a position to here complain of the finding and judgment of the District Court in that respect, not having filed a motion for a new trial, or taken any steps to present that question to this court. Whether Front street was or was not a highway of the city for the grading of which it might be liable, is not, therefore, here for consideration.
The action was commenced June 29, 1906; and counsel •for the city contend that the action was barred in four years from the time the grading was completed, and is governed by the provisions of section 4300, Comp. Stat., vis.; “an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated”; while counsel on the other side contend that it is “an action upon a liability created by statute other than a forfeiture or penalty,” and as such comes within the eight years limi[251]*251tation provided m section 4299, Comp. Stat. We are of the opinion that the case comes within the former and that the action would be barred after four years from the time the cause of action accrued. It was so held in a similar case by the Supreme Court of Nebraska, where the statute is the same as ours. (City of Omaha v. Flood, 57 Neb. 124, 77 N. W. 379.) In the absence of anything in' the record to the contrary, we must presume that the court so considered it and applied the proper statute; and indeed it is stated-in the brief of plaintiff in error that “the court below also decided orally that the statute of limitations had run as to any grading upon Front street,” which statement is not denied. As to the time when the grading on Fifth street was cdmpleted, the evidence is conflicting.. A number of witnesses testified on that point, the recollection of some of them being that it was completed in the fall of 1901, and of others that it was late in the spring o.r summer of 1902. There was also introduced in evidence a part of the record of the proceedings of the council of the city containing directions to the clerk “to advertise for bids for the grading of Fifth street from Front street to Buffalo street * * * Bids to be received until the 16th day of June, 1902.” It being apparent that the court must have found that the grading on Fifth.street was not completed before June 29, 1902, in order to find for plaintiffs, and the evidence being conflicting, under the well settled rule, this court will not disturb such finding.
It is further contended that there is no valid evidence upon which to base a finding of damages to the amount found by the court, or in any amount, as the result of the grading on Fifth street alone; and that the evidence shows that a part of said street is on the right of way of the U. P. R. R. Co. In its answer the defendant admitted that “Fifth street adjoining the above described property on the west was a public highway of the City of Rawlins, but in relation to the so-called Front street this defendant says that by the plat of said part of the City of -Rawlins, filed by the U. P. R. R. Co., there is no Front street laid out [252]*252or designated, nor by the authority of-the City of Rawlins has any Front street ever been laid out or designated and the space to the south of said buildings and premises described in said amended petition, is a part of the right of way of the Union Pacific Railroad Company.” The plat of the city introduced in evidence by the defendant shows that Fifth street extends along the entire west side of the lots in question.
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Beard, Chirr Justice.
The defendants in error, Murphy and Ready, brought this action against the plaintiff in error, The City of Rawlins, to recover damages to their property, alleged to have been sustained by reason of the grading of certain streets adjacent thereto, in pursuance of an ordinance of the city changing the grade of said streets as previously established. The cause was tried to the court, without a. jury, resulting in a judgment in favor of said plaintiffs below in the sum. of' $3,750, with eight per cent interest from June 29, 1906, and costs. The city brings the case here on error.
[249]*249The plaintiffs alleged in their petition in the District Court, in substance, that on August 12, 1899, they were and ever since have been the owners of certain lots in said city, situated on the southwest corner of the block, and upon which there was and is a two-story stone business building, Front street being adjacent to said property on the south, and Fifth street adjacent thereto on the west. That during all of said time Front street and Fifth street were public highways of said city, and as such highways were in the lawful custody and control of said city. That prior to the purchase of said property by plaintiffs the city had established the grades of said streets; and that about August 29, 1900, new grades for said streets were established by said city, and from about July 15, 1901, up to and including the month of September, 1902, said city, without, the consent of plaintiffs, changed and lowered the surface level of said Front and Fifth streets adjacent to said premises, thereby leaving said building high above the level of said streets. That by reason of such grading said premises were depreciated in value in the sum of $7,600; and that by reason of the store occupied by plaintiffs in .said building being rendered inaccessible on account of said grading, plaintiffs were damaged in the sum of $2,400. That on May 31, 1906, plaintiffs presented in writing to the 'mayor and board of trustees of said city their claim for said damages, which claim has never been allowed.. They prayed judgment for $10,000.
In its answer the defendant city admitted that Fifth street adjoining said property on the west was a public highway of said city; but denied that the so-called Front street was a public highway of said city, or in the custody or lawful control of the municipal authorities of said city, but that it was a part of the right of way of the Union Pacific Railroad Company. Admitted that after the establishment of the grade in 190D, some grading was done adjacent to said property, but denied that any grading was so done after February 1, 1902, and denied that the grading so done [250]*250lowered the level of the street adjacent to said property below the grade established in 1887, except for a short distance opposite the rear of said premises on Fifth street; and denied generally the other allegations of the petition. For a second defense, the defendant alleged that no grading had been done adjacent to said premises after February 1, 1902, and pleaded the statute of limitations. Plaintiffs by their reply denied the new matter set up in the answer.
Upon the issues thus joined, the court found that plaintiffs were entitled to recover nothing by reason of damage to their property caused by the grading of Front street; that said Front street, where it is adjacent to the property of plaintiffs, is situated entirely-upon the right of way of the Union Pacific Railroad Company; that plaintiffs were entitled to recover from the defendant $3,750, together with eight per cent per annum interest thereon from June 29, 1906, as damages to said property caused by the grading done on Fifth street, the same being the amount of depreciation in the market value of the property caused by such grading.
Counsel for defendants in error have argued at some length the question of the liability of the city for the grading of Front street. But they are not in a position to here complain of the finding and judgment of the District Court in that respect, not having filed a motion for a new trial, or taken any steps to present that question to this court. Whether Front street was or was not a highway of the city for the grading of which it might be liable, is not, therefore, here for consideration.
The action was commenced June 29, 1906; and counsel •for the city contend that the action was barred in four years from the time the grading was completed, and is governed by the provisions of section 4300, Comp. Stat., vis.; “an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated”; while counsel on the other side contend that it is “an action upon a liability created by statute other than a forfeiture or penalty,” and as such comes within the eight years limi[251]*251tation provided m section 4299, Comp. Stat. We are of the opinion that the case comes within the former and that the action would be barred after four years from the time the cause of action accrued. It was so held in a similar case by the Supreme Court of Nebraska, where the statute is the same as ours. (City of Omaha v. Flood, 57 Neb. 124, 77 N. W. 379.) In the absence of anything in' the record to the contrary, we must presume that the court so considered it and applied the proper statute; and indeed it is stated-in the brief of plaintiff in error that “the court below also decided orally that the statute of limitations had run as to any grading upon Front street,” which statement is not denied. As to the time when the grading on Fifth street was cdmpleted, the evidence is conflicting.. A number of witnesses testified on that point, the recollection of some of them being that it was completed in the fall of 1901, and of others that it was late in the spring o.r summer of 1902. There was also introduced in evidence a part of the record of the proceedings of the council of the city containing directions to the clerk “to advertise for bids for the grading of Fifth street from Front street to Buffalo street * * * Bids to be received until the 16th day of June, 1902.” It being apparent that the court must have found that the grading on Fifth.street was not completed before June 29, 1902, in order to find for plaintiffs, and the evidence being conflicting, under the well settled rule, this court will not disturb such finding.
It is further contended that there is no valid evidence upon which to base a finding of damages to the amount found by the court, or in any amount, as the result of the grading on Fifth street alone; and that the evidence shows that a part of said street is on the right of way of the U. P. R. R. Co. In its answer the defendant admitted that “Fifth street adjoining the above described property on the west was a public highway of the City of Rawlins, but in relation to the so-called Front street this defendant says that by the plat of said part of the City of -Rawlins, filed by the U. P. R. R. Co., there is no Front street laid out [252]*252or designated, nor by the authority of-the City of Rawlins has any Front street ever been laid out or designated and the space to the south of said buildings and premises described in said amended petition, is a part of the right of way of the Union Pacific Railroad Company.” The plat of the city introduced in evidence by the defendant shows that Fifth street extends along the entire west side of the lots in question. In view of such admission in the answer, we do not think the city should now be heard to claim that it is not liable for the damage caused by the grading of any part of Fifth street adjacent to the property, on the ground that it is not a highway. The evidence in relation to the amount of damage caused by the work done on that street alone is not the most satisfactory, but what there is is un-contradicted and.ranges from $1,000 to $4,500. It cannot be said that there is an entire lack of evidence in that respect. There being some evidence, it was for the trial court to weigh it and determine the amount. The sum found by the court being fairly within the evidence, and not seeming to us to be excessive, ought not to be disturbed. In this connection it is also urged that the court erred in segregating the damages; and that under the allegations of the petition and plaintiffs’ theory on the trial no recovery could be had on account of the grading of Fifth street alone. But we do not agree with counsel in that contention. The' city pleaded its non-liability for damages caused by the grading of Front street as a partial defense to the action, and we think by its answer presented the question of damage caused by the grading of Fifth street alone, on a part of which it admitted it had done some grading adjacent to the property; and it sought to show by cross-examination of plaintiffs’ witnesses that such damage was slight, if any. We are unable to see how the city was prejudiced by the failure of plaintiffs to separately state the amount of damages they claimed for the grading of each street. The city had an opportunity to show, if it could, that no damage was caused by the work done on Fifth street, or that it was less than that stated by plaintiffs’ witnesses.
[253]*253There is but one other question presented, that is, the question, .of .interest. The rule and the exception thereto are stated in Kuhn v. McKay, 7,Wyo. at p. 65. The general rule being that interest is not allowed on unliquidated damages. The exception being, “demands based upon'market values, susceptible of easy proof, though unliquidated until the par7 ticular subject of the demand has been made certain by agreement or proof, are not so uncertain that no default can be predicated of any delay in making payment. (1 Sutherland, on. Damages, 610.) Therefore, on such a demand interest is not denied.” In this case it is true that the amount of damages recoverable was the difference in the market value of the premises immediately before and immediately after the grading, caused by the grading for which the city was liable. But the evidence shows that such market values were not susceptible of easy proof, and for. that reason the case does not come within the exception. There were a number of witnesses called on that question, and they varied in their estimates of the market value of the property immediately before the grading, such estimates ranging from $8,000 to $25,000. In addition to that fact, plaintiffs were demanding damages for an injury for which the court held the city not liable. We think the court erred in allowing interest on the amount of damages to which it found plaintiffs entitled. The item of $802.50' interest included in the judgment should' be eliminated therefrom.- The cause will be remanded to the District Court with directions to so modify its judgment, and as so modified the judgment is affirmed.
Section 5I26, Comp. Stat., provides, when a judgment is reversed in part and affirmed in part, the court may apportion the costs between 'the parties in such manner as it deems equitable. We think this case comes within that provision. The costs in this court, including cost of transcript, will be equally divided between the parties, but no costs will be taxed to, or in favor of either party for briefs.
Reversed in part and affirmed in part.
Scott, J., and Potter, J., concur.'