Opinion
Civ. No. 2296.
February 25, 1918.
APPEAL from a judgment of the Superior Court of Contra Costa County. A. B. McKenzie, Judge.
The facts are stated in the opinion of the court.
D. J. Hall, for Appellant.
Dunn, White Aiken, and Donald Horne, for Respondent.
The plaintiff owned a lot fronting on Montana Street in the city of Richmond. Her grantor had dedicated Montana Street in front of this lot as a public street, and the dedication had been accepted by the city of Richmond. At the time of the dedication no official grade had been established on this street. After the plaintiff had acquired the lot and built a house thereon the city of Richmond established an official grade and graded the street to it, and, as the jury found, this resulted in damage to plaintiff's said property in the sum of five hundred dollars.
The grade established being unquestionably reasonable and necessary to make the street available for the purpose for which it was dedicated, it is contended that the plaintiff is not entitled to recover damages for the bringing of the street to the first official grade.
The point is decided in Eachus v. City of Los Angeles, 130 Cal. 492, [80 Am. St. Rep. 147, 62 P. 829], and Eachus v. Los Angeles Ry. Co., 103 Cal. 614, [42 Am. St. Rep. 149, 37 P. 750], unless the plaintiff is estopped from claiming damages by reason of the fact that her grantor dedicated the street. The appellant argues that respondent's grantor made this dedication knowing that the natural grade of Montana Street was, by reason of steepness, impracticable and inaccessible to teams and vehicles, and that plaintiff and her grantor knew at all times before the actual grading was ordered that it was necessary to grade the street to the official grade in order to make it accessible for the purpose for which it was dedicated. But this is not so, for neither the city nor plaintiff's grantor could know at the time of the dedication of the street, nor could the plaintiff know at the time of her purchase and the erection of her house, what grading would be necessary to make the street reasonably fit for the public use for which it was intended. In these days of changing methods of constructing and grading streets no one may forecast the future grade of a public street, or the amount of injury which will be done to property by the establishment of the first official grade thereon. The city was not compelled to accept the dedication of this street; and if it did so it took the advantages yoked with the burdens.
There is nothing contrary to this view in Bancroft v. City of San Diego, 120 Cal. 432, [52 P. 712].
The evidence sustains the finding of five hundred dollars' damages.
The judgment is affirmed.
Lennon, P. J., and Kerrigan, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 25, 1918.