Rsxakp, 3.,
delivered the opinion of the court.
The city of St. Louis passed an ordinance, on the 14th September, 1843, by which it fixed the grade of Clark avenue — a public street of said city.
The appellant became the proprietor of a lot on Clark avenue, 120 feet in front, and erected two dwelling houses along the front of his lot, conforming to the grade as established by the forementioned ordinance, and having their lower stories level with the ground.
'On the 19th of August, 1851, the city passed an ordinance changing the grade of Clark avenue, aud agreeably to its provisions, proceeded 'to fill up the street in front of appellant’s dwelling houses, so as to render them of materially less value. The last mentioned ordinance was passed on petition of many of the lot owners on the avenue, and without any actual intention to injure the appellant. An agreed case, containing the forementioned facts, was submitted by the parties to the St. Louis court of common pleas. That court gave judgment for the .city, and Hoffman brings the ease to this court by appeal.
The principles involved in this ease, have ¡heretofore, for the most part, been settled by this court, in the case of Gurno vs. the City of St. Louis, 12 Mo. Rep. 414, and Taylor, et al. vs. the City of St. Louis, 14 Mo. Rep. 20. So far, therefore, as these cases are applicable to the present case, they will control it.
The appellant however, contends^ that there is a manifest distinction between these eases and the one now before the court. In the present the injury arises not from the exercise by the city, of the power to grade the streets, &c., but from the exercise of a power to change and alter the grade of a street, after having once fixed it. It is the alteration of this grade that now causes the injury, not the mode and manner of making it originally. This alteration materially lessens the value of the dwelling houses first erected in conformity with the then established grade of the avenue.
The question resolves itself into this: Does the power to grade streets, &c., become exhausted when once exercised, or is it a continuing power, in the hands of the corporation, to be exercised as the judgment of that body may determine, for the good of the whole ?
The charter of the city contains the following clause: (Art 3, sec. 2, eighth clause of the section:) “To open, alter, abolish, widen, extend, establish, grade, pave or otherwise improve, clean and keep in repair, streets, avenues, lanes and alleys} but the Mayor and city council shall not establish nor open a street, lane, avenue or alley, through the ground [654]*654lying and being situate between North street and Eleventh street, and Washington avenue and Green street, without the written assent of the proprietors of the St. Louis University, so long as the building now used as a University remains erected thereon.”
It is the opinion of the court, that the power hereby conferred upon the city, in regard to the grading of streets, lanes and avenues, is a continuing power, and is not exhausted upon the first use, but must remain to be exercised not with wanton caprice, but as the judgment of the corporate powers may deem most conducive to the welfare and prosperity of the city.
It is lawful for the city, by its Mayor and council, “by ordinance, to alter, abolish, widen, extend, establish, grade, pave or otherwise improve, clean and keep in repair streets, avenues, lanes and alleys.” — . This is not only a general and ample power, but from its nature, must be a continuing power. They may “altera street;” how? By raising up or by cutting down, or by lateral variation. What is to hinder the alteration of the grade?
In the matter of opening Furman street, in the City of Brooklin, 17 Wend. 649, it was decided, that the power of a corporation, of a village or city “to regulate, level and pave streets,” is a continuing power, and the level of a street, although once adopted, may be changed, even alter it has been paved, or otherwise prepared for public use.
The language of the court in this last case is, “That the authority to regulate, level and pave streets is, in its nature a continuing power, or one that does not cease the moment it is once executed. It was given for the purpose of promoting the public safety, and convenience, and although the power should never be exercised capriciously, or upon light considerations, yet, there is no doubt that the corporation may change the level'of any street, even after it has been paved or otherwise prepared for public use.
In the case of Callender vs. Marsh, 1 Pick. 431, Chief Justice Parker said, that “those who purchase house jots, bordering on streets, are supposed to calculate the chance of such elevations, as the increasing population of a city may require, in order to render the passage to and from the several parts of it, safe and convenient; and as their purchase is always voluntary, they may indemnify themselves in the price of the lot which they buy, or take the chance of future improvements, as they may see fit.”
In the case of Goszler vs. the corporation of Georgetown, 6 Wheat. 593, the supreme court of the United States held, that the power given to the corporation of Georgetown, by the act of Maryland Ley's!ature [655]*655of November, 1797, to graduate the streets of that city, is a continuing power, and the corporation may, from time to time, alter the gradation so made.
In the year 1797, the legislature of Maryland, among certain additional powers given to the corporation of Georgetown, eni cted, that they shall have full power and authority to make such by-laws and ordinances for the graduation and leveling the streets, lanes and alleys, within the jurisdiction of the same town, as they may judge necessary for the benefit thereof. In pursuance of this authority, the corporation passed an ordinance in May 1799, for the graduation of certain streets; the first section of which appoints commissioners, and authorises them to make the level and graduation of the streets. The second is in these words: “And be it ordained, that the said level and graduation, when made by the commissioners, or a majority of them, and returned to the clerk of this corporation, shall be forever thereafter considered as the true graduation of the streets so graduated, and be binding upon this corporation and all other persons whatever, and be forever thereafter regarded in making improvements on said streets.”
The plaintiff owned lots upon one of these streets, and made improvements thereon, according to the graduation made and returned to the clerk of the corporation under directions of this ordinance. In September 1816, the corporation passed another ordinance, directing the level and graduation of this street to be altered; and the commissioners appointed, being about to cut down the street, by the plaintiff’s house, were enjoined from proceeding, by a bill filed against them and the corporation by the complainant: Upon the final hearing, the circuit court dismissed the bill, being of the opinion that the corporation had the power, asserted by them in their answer, of altering the level and graduation of a street graduated under the former ordinance of May, 1799. The supreme court decided, that this power was a continuing one, in the corporation; that the original power continues after its first exercise. Chief Justice Marshall did give some weight to the phraseology of the act.
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Rsxakp, 3.,
delivered the opinion of the court.
The city of St. Louis passed an ordinance, on the 14th September, 1843, by which it fixed the grade of Clark avenue — a public street of said city.
The appellant became the proprietor of a lot on Clark avenue, 120 feet in front, and erected two dwelling houses along the front of his lot, conforming to the grade as established by the forementioned ordinance, and having their lower stories level with the ground.
'On the 19th of August, 1851, the city passed an ordinance changing the grade of Clark avenue, aud agreeably to its provisions, proceeded 'to fill up the street in front of appellant’s dwelling houses, so as to render them of materially less value. The last mentioned ordinance was passed on petition of many of the lot owners on the avenue, and without any actual intention to injure the appellant. An agreed case, containing the forementioned facts, was submitted by the parties to the St. Louis court of common pleas. That court gave judgment for the .city, and Hoffman brings the ease to this court by appeal.
The principles involved in this ease, have ¡heretofore, for the most part, been settled by this court, in the case of Gurno vs. the City of St. Louis, 12 Mo. Rep. 414, and Taylor, et al. vs. the City of St. Louis, 14 Mo. Rep. 20. So far, therefore, as these cases are applicable to the present case, they will control it.
The appellant however, contends^ that there is a manifest distinction between these eases and the one now before the court. In the present the injury arises not from the exercise by the city, of the power to grade the streets, &c., but from the exercise of a power to change and alter the grade of a street, after having once fixed it. It is the alteration of this grade that now causes the injury, not the mode and manner of making it originally. This alteration materially lessens the value of the dwelling houses first erected in conformity with the then established grade of the avenue.
The question resolves itself into this: Does the power to grade streets, &c., become exhausted when once exercised, or is it a continuing power, in the hands of the corporation, to be exercised as the judgment of that body may determine, for the good of the whole ?
The charter of the city contains the following clause: (Art 3, sec. 2, eighth clause of the section:) “To open, alter, abolish, widen, extend, establish, grade, pave or otherwise improve, clean and keep in repair, streets, avenues, lanes and alleys} but the Mayor and city council shall not establish nor open a street, lane, avenue or alley, through the ground [654]*654lying and being situate between North street and Eleventh street, and Washington avenue and Green street, without the written assent of the proprietors of the St. Louis University, so long as the building now used as a University remains erected thereon.”
It is the opinion of the court, that the power hereby conferred upon the city, in regard to the grading of streets, lanes and avenues, is a continuing power, and is not exhausted upon the first use, but must remain to be exercised not with wanton caprice, but as the judgment of the corporate powers may deem most conducive to the welfare and prosperity of the city.
It is lawful for the city, by its Mayor and council, “by ordinance, to alter, abolish, widen, extend, establish, grade, pave or otherwise improve, clean and keep in repair streets, avenues, lanes and alleys.” — . This is not only a general and ample power, but from its nature, must be a continuing power. They may “altera street;” how? By raising up or by cutting down, or by lateral variation. What is to hinder the alteration of the grade?
In the matter of opening Furman street, in the City of Brooklin, 17 Wend. 649, it was decided, that the power of a corporation, of a village or city “to regulate, level and pave streets,” is a continuing power, and the level of a street, although once adopted, may be changed, even alter it has been paved, or otherwise prepared for public use.
The language of the court in this last case is, “That the authority to regulate, level and pave streets is, in its nature a continuing power, or one that does not cease the moment it is once executed. It was given for the purpose of promoting the public safety, and convenience, and although the power should never be exercised capriciously, or upon light considerations, yet, there is no doubt that the corporation may change the level'of any street, even after it has been paved or otherwise prepared for public use.
In the case of Callender vs. Marsh, 1 Pick. 431, Chief Justice Parker said, that “those who purchase house jots, bordering on streets, are supposed to calculate the chance of such elevations, as the increasing population of a city may require, in order to render the passage to and from the several parts of it, safe and convenient; and as their purchase is always voluntary, they may indemnify themselves in the price of the lot which they buy, or take the chance of future improvements, as they may see fit.”
In the case of Goszler vs. the corporation of Georgetown, 6 Wheat. 593, the supreme court of the United States held, that the power given to the corporation of Georgetown, by the act of Maryland Ley's!ature [655]*655of November, 1797, to graduate the streets of that city, is a continuing power, and the corporation may, from time to time, alter the gradation so made.
In the year 1797, the legislature of Maryland, among certain additional powers given to the corporation of Georgetown, eni cted, that they shall have full power and authority to make such by-laws and ordinances for the graduation and leveling the streets, lanes and alleys, within the jurisdiction of the same town, as they may judge necessary for the benefit thereof. In pursuance of this authority, the corporation passed an ordinance in May 1799, for the graduation of certain streets; the first section of which appoints commissioners, and authorises them to make the level and graduation of the streets. The second is in these words: “And be it ordained, that the said level and graduation, when made by the commissioners, or a majority of them, and returned to the clerk of this corporation, shall be forever thereafter considered as the true graduation of the streets so graduated, and be binding upon this corporation and all other persons whatever, and be forever thereafter regarded in making improvements on said streets.”
The plaintiff owned lots upon one of these streets, and made improvements thereon, according to the graduation made and returned to the clerk of the corporation under directions of this ordinance. In September 1816, the corporation passed another ordinance, directing the level and graduation of this street to be altered; and the commissioners appointed, being about to cut down the street, by the plaintiff’s house, were enjoined from proceeding, by a bill filed against them and the corporation by the complainant: Upon the final hearing, the circuit court dismissed the bill, being of the opinion that the corporation had the power, asserted by them in their answer, of altering the level and graduation of a street graduated under the former ordinance of May, 1799. The supreme court decided, that this power was a continuing one, in the corporation; that the original power continues after its first exercise. Chief Justice Marshall did give some weight to the phraseology of the act. He said, that the power was not to graduate and level the streets, or to make a by-law for the graduation and leveling of the streets, but to make such by-laws and ordinances for the graduation and leveling of the streets, &c., as they may judge necessary for the benefit of the town. “The act” says the Judge, “contemplates a continuance of the power; a repetition of the by-laws and ordinances as the corporation may judge necessary for the benefit of the town.”
It gives a power to legislate on the subject, and to pass more than oae by-law, and ordinance respecting it. This, like all power, is sus[656]*656eeptible of abuse, but is trusted to tbe inhabitants, themselves, who elect the corporate body, and who may, therefore, be expected to consult the interests of the town. The graduation and levelling of the streets is not necessarily a single operation.
The power given to the corporation of St. Louis, by its charter, is equally as ample as that given to Georgetown. The 3rd section of the 3rd article of the charter declares : “That the city council shall have power, subject to the restriction of the last clause of the second section, (which restriction consists of the words “not repugnant to the constitution and laws of this State,”) to make all ordinances, which shall be necessary and proper for carrying into effect the powers specified in the preceding section, and all other powers vested by this act in the. corporation, the city government, or an}' department or officer thereof.” The city authorities, in our opinion, having the power to alter the grade of the streets and avenues, this case must then fall within the class of cases like those of Gurno vs. the City of St. Louis, and Taylor and others vs. the City of St. Louis, heretofore decided by this court.
In the case of Hay vs. Cohoe’s company, 2 Comstock 159, the court observed, that “no one question, that the improvements contemplated by the defendants, upon their own premises, was one proper and lawful. The means by which it was prosecuted were illegal, notwithstanding, they disturbed the rightful possession of the plaintiff, and caused ~a direct and immediate injury to his possession.” Let the city authorities go beyond the corporate limits of the city, purchase a tract of land .{if it had the power,) and commence blasting rock thereon, so near to the dwelling house of a proprietor of an adjoining tract of land, as to break his windows or roof, and the cases will be more parallel.
The liability of the corporations to actions for consequentional damages, has engrossed the attention of the Courts of most of the States .of the Union, and the decisions are not uniform, but are more or less contradictory and conflicting. We acquiesce in the decisions of this Court in the cases of Gurno vs. the City of St. Louis, and Taylor, et al, vs. the City of St. Louis, heretofore made; and being satisfied of the power of the Corporation to grade anew the avenue in question, this ease must he determined according to the ruling in those cases.
The other Judges concurring, the judgment below is affirmed