#### OLLIE HOYLE et als. v. CITY OF HICKORY.

(Filed 10 December, 1913.)

1. Cities and Towns — 'Street Grading — Embankments — Adjoining Owners — Courts—Negligence.

Where a town has caiised damage to the lands of adjoining owners on a street by filling in the street in the course of grading it, so as to cause an embankment 5 or 6 feet high to be made in front thereof, and it appears that the work was not negligently done and was in accordance with the plans of the town engineer, adopted by the city council, all acting in 'good faith, under powers conferred by the charter, such damages are not recoverable in an action therefor against the city, for the judgment of the town authorities in such matters is not reviewable by the courts.

2. Cities and. Towns — Street Grading — Embankment—Trials—Negligence — Evidence.

The height of an embankment placed by a town in grading its streets in front of adjoining lots on one of them, is not of itself evidence of negligent construction for which damages are recoverable by the owners; and in the absence of further negligence therein, an. instruction which leaves the question of actionable negligence to the determination of the jury is erroneous.

3. Cities and Towns — 'Street Grading — Embankments — Retaining Walls — T rials — Evidence—Negligence.

Where the owner of lands adjoining a street sues for damages arising from the dirt of an embankment constructed by the city in the grading of the street rolling down upon and damaging his land, and it appears that a retaining wall would have prevented the injury, evidence in ‘behalf of the city is competent that at the request or instance of the plaintiff, ratified by the proper authorities' of the defendant, the latter did not construct the retaining wall which it otherwise would have done.

4. Cities and Towns — Street Grading. — Different Locations — Trials —Evidence—Negligence.

In an action by the owner of lands on a city street, brought against the city f,or the alleged negligent construction on that *80street o£ an embankment to the plaintiff's damages, erected in the grading thereof, evidence of construction at an entirely different -x>lace is not evidence of negligent construction at the place complained of.

I-Ioke, J., did not sit. Allen, J., dissents.

Appeal by defendant from Cline, J., at July Term, 1913, of Catawba.

W. A. Self and C. L. Wlvitener for plaintiffs.

A. S. Whitener for defendant.

Clakk, C. J.

Tbe defendant in grading Ninth Avenue in that city found it necessary to place a fill between 5 and 6 feet bigli in front of a bouse, belonging to tbe plaintiffs, wbicb was located in a depression. There was no condemnation proceedings, ás tbe city did not take any portion of tbe property belonging to tbe plaintiffs. This action was brought, alleging that tbe fill was negligently constructed. Tbe evidence is that the work was executed for tbe city in accordance with tbe plans, specifications, and directions of tbe city engineer. It was not denied that tbe city acted in good faith in grading tbe street.

In Tate v. Greensboro, 114 N. C., 401,, it is said: “As against the lot owner, a city, as trustee of tbe public use, has an undoubted right, whenever its authorities see fit, to open and fit' for use and travel tbe streets over wbicb tbe public easement extends to tbe entire width; and whether it will so open and improve it, or whether it should be opened and improved, is a matter of discretion, to be determined by tbe public authorities to whom tbe charge and control of tbe public interests in and over-such easements are committed. With tbe discretion of'the authorities courts cannot ordinarily interfere so long as tbe easement continues to exist. . . . The'public use is a dominant interest, and tbe public authorities are tbe exclusive judges when and to what extent tbe streets shall be improved. Courts can interfere only in cases of fraud and oppression constituting manifest abuse of discretion.- It necessarily follows that for tbe *81performance of tbis discretionary duty by the city officers in a reasonable and prudent manner no action can be maintained against tbe city.”

“Authority to establish grades for .streets, and to grade them, involvés the right to make changes in the surface of the ground which may injuriously affect the adjacent property owners. But where the power is not exceeded there is no liability, uhless created by special constitutional provision or by statute (and then only in the mode and to the extent provided) for the consequence resulting from the powers being exercised and properly carried into execution.” 2 Dillon Mun. Corp., sec. 1040, cited and approved in Dorsey v. Henderson, 148 N. C., 426.

Dorsey v. Henderson also cites with approval from 10 A. and E. (2 Ed.), 1124 ff, as follows: “A change of grade in streets made by a municipality, if made in accordance with the statute, is not such’ an injury to adjoining property as to require compensation to be made to owners, unless there is a statute rendering the municipality liable therefor.” It is further said therein that this citation is based upon cases cited from England, the United States Supreme Court, and twenty-five States, and is recognized especially in Transportation Co. v. Chicago, 99 U. S., 635; Smith v. Washington, 20 Howard, 135.

Indeed, the whole subject is so fully discussed by Mr. Justice Brown in Dorsey v. Henderson, 148 N. C., 423, that nothing can be added. In that case it is said that “an abutting owner on a public street cannot recover damages for the diminution of the value of his property caused by the change in the grade of the street in the absence of any negligence in the construe-tion of the work. . . . The law has been so held by this Court - in a number of cases, and in such explicit terms that to adopt the plaintiff’s theories would be to overrule a long line of well established precedents. The question was first considered in this Court in 1848, and exhaustively discussed by Judge Pearson, and the conclusion reached that where a municipal corporation has authority to grade its street it is not liable for consequential damages unless the work was done in an unskillful and incautious manner. Meares v. Wilmington, 31 N. C., 73. This *82case has been approved and followed in many adjudications of tbis Court in more recent years. Salisbury v. R. R., 91 N. C., 490; Wright v. Wilmington, 92 N. C., 160; Tate v. Greensboro, 114 N. C., 897; Brown v. Electric Co., 138 N. C., 537; Ward v. Commissioners, 146 N. C., 538; Small v. Edenton, ib., 527; Jones v. Henderson, 147 N. C., 120. In Thomason v. R. R. the subject is referred to as ‘tbe settled doctrine of tbis State, 142 N. C., 307.”

In Cooley Const. Lim., 542, it is said that tbis doctrine is almost universally accepted by tbe State courts of tbis country. In Transportation Co. v. Chicago, 99 U. S., 635, it is said that tbe doctrine “rests upon tbe soundest legal' reason,” adding: “Acts done in tbe proper exercise of governmental powers, and not directly encroaching upon private property, tbougb their consequences may impair its use, are universally held not to be a ‘talcing’ within tbe meaning of tbe constitutional provision. They do not entitle tbe owner of such property to compensation from tbe State or its agents, or .give him any right of action. Tbis is supported by an immense weight of authority.”

There is no constitutional provision or statute which limits tbe right in tbis State, and, on tbe contrary, tbe defendant has full authority for its apt-ion under tbe provisions of its charter, chapter 242, Pr. Laws 1907. Dorsey v. Henderson, supra, was a carefully considered case, and has been cited and approved since. Crowell v. Monroe, 152 N. C., 401; Harper v. Lenoir, ib., 726; Earnhardt v. Commissioners, 157 N. C., 236.

The plaintiffs were permitted to introduce evidence tending to show that tbe grade'at another place on said Ninth Avenue was different from that opposite tbeir property. Tbe evidence of tbe three civil engineers, one of them subpoenaed by plaintiffs, was that tbe grade opposite plaintiffs’ property was necessary and proper. The evidence that the grade at another point was different was incompetent. It tended merely to raise another issue, not pertinent to tbis controversy. Tbe city bad the right to grade tbe street in accordance with tbe judgment of tbe civil engineers, subject to tbe approval of its board of commissioners, in tbe absence of evidence of oppression, misconduct, 'or bad faith, of which there was no evidence.

*83Tbe court also erred in instructing tbe jury that it was for them to say from tbe evidence whether or not the construction of tbe embankment at this point was negligent because of an unnecessary height, because there was no evidence to support this view. If there had been, it should have been submitted to the jury. Harper v. Lenoir, 152 N. C., 126. But the mere fact that the height of the embankment was an inconvenience to the plaintiffs and injured the value of their property was not of itself evidence to support the allegation of negligent construction. The jury have neither the skill nor the instruments to enable them to review the work of the engineers, nor have they the experience or the opportunity to examine and criticise the work. There must be evidence of negligence.

The plaintiffs also contended that the work was negligently done because the dirt was permitted to roll down from the embankment upon their lot, covering up part of it and some of it rolling upon their porch. Whether it was negligence not to put in a retaining wall to prevent this might well be submitted to the jury unless the plaintiffs consented to the work being done'without this. There was evidence that they objected to a retaining wall being put in, and also that they gave permission that the work should be done without such wall. If so, they cannot complain of the consequences. The court erred in refusing to admit evidence in corroboration of the alleged agreement on the part of the plaintiffs to this effect and the ratification of such agreement by the town authorities.

It was alleged in the complaint that the city cut down an oak tree on the plaintiffs’ lot worth $25. This was denied in the answer,, and the preponderance of the evidence.seems to be that the tree was not cut down by the city, or, by its authority, but by a negro with the permission of the plaintiffs. This controversy can scarcely be said to come within the terms of the issues submitted, for it was no part of the grading of the street. But as the case goes back for new trial, a separate issue as to this point can be submitted, if desired.

Our conclusion is that for any inconvenience or damage sustained by the plaintiffs’ lot from placing the fill in the street *84opposite thereto under the advice and supervision of the civil engineer, whose plans were ‘approved by the city authorities acting in good faith, the plaintiffs cannot recover unless the work was done negligently. It is damnum absque injuria- The court erred in submitting to the jury the question whether the embankment was not negligently constructed, because unnecessarily high, without evidence to support it; in allowing the jury to consider evidence as to the nature of the grading on another block on said street and in not submitting to the jury for their consideration the evidence of the agreement of the plaintiffs to dispense with the erection of a retaining wall.. If there was no such agreement, the plaintiffs were entitled to have the jury consider the damage, if any, caused by defendant’s negligence in not erecting a retaining .wall to prevent the dirt from rolling down upon the lot of the plaintiffs.

For the reasons above given, there must be a.

New trial.

HoKe, J.,. did not sit.

AuleN, J\, dissents.