also applies in this connection, which applies to all control of public property, that action by municipal or public authorities, even where a granted power exists, may be made dependent upon the consent or original action by designated property owners,574 and is limited by the title and conditions, if any, under which the property is acquired. The exercise of the powers included within this paragraph is confined to legal and public highways 575 irrespective of the manner in which created. Relocation of a road. A change in the character of the roadway, in its direction, or an increase in its length is regarded as action which will necessitate the inauguration of the proceedings prescribed by statute for the laying out or establishment of a new road. Upon the alteration of an existing highway, the newly located portion is substituted for the old and becomes then 574 City & County of San Francisco v. Kiernan, 98 Cal. 614, 33 P. 720; Bowers v. Snyder, 88 Ind. 302; Inhabitants of Newcastle v. Lincoln County Com'rs, 87 Me. 227, 32 Atl. 885. The proceedings must be sufficient to warrant a proposed alteration. Inhabitants of Whately v. Franklin County Com'rs, 42 Mass. (1 Metc.) 336; Cutter v. City of Cambridge, 88 Mass. (6 Allen) 20; Hobart v. Plymouth County, 100 Mass. 159; Jeffries V. Inhabitants of Swampscott, 105 Mass. 535. Statutory provisions must be strictly followed. Hagemeyer V. Wright County Com'rs, 71 Minn. 42, 73 N. W. 628; State v. Young, 27 Mo. 259. But the public authorities have the right to make an alteration in a road. Self v. Gowin, 80 Mo. App. 398; Howeth v. Jersey City, 30 N. J. Law, 93; Hand v. Fellows, 148 Pa. 456, 23 Atl. 1126; Neis v. Franzen, 18 Wis. 537; Hark v. Gladwell, 49 Wis. 172. See, also, §§ 360 et seq., ante. 575 Babcock v. Welch, 71 Cal. 400, 12 Pac. 337; Town of Kent v. V. Pratt, 73 Conn. 573, 48 Atl. 418; 576 Mitchell v. Court, 116 Ala. 650; Gross v. McNutt, 4 Idaho, 286, 38 Pac. 935; Brown v. Roberts, 23 Ill. App. 461, affirmed 123 Ill. 631, 15 N. E. 30. One not owning land upon that part of a highway relocated and who is a tax payer is not a person interested in the alteration to whom a statutory right of appeal is given. Adams v. Ulmer, 91 Me. 47; Dana v. City of Boston, 170 Mass. 593; Turlow v. Ross, 144 Mo. 234, 45 S. W. 1125; Robson v. Byler, 14 Tex. Civ. App. 374; State v. Wheeler, 97 Wis. 96; Town of Wheatfield v. Shasley, 23 Misc. (N. Y.) 100. the legal way upon which public moneys may be legally expended and in the alteration of which a public liability will be assumed.577 § 809. Difference in urban and suburban uses. 578 The right of the public authorities to control the use of a highway largely depends upon its character as an urban or suburban way. The uses to which the two kinds of roads are put are materially different and to the public authorities having control of streets proper as they are found within the limits of municipal corporations is usually given, either expressly or by necessary implication, a much larger degree of power and discretion in making improvements, changes or repairs.579 § 810. Change of grade in a highway or street. The power to open a highway, whether a street proper or otherwise, usually carries with it the implied right to establish in a lawful manner 560 a certain grade with reference to abutting property 577 Cyr v. Dufour, 68 Me. 492; Getchell v. Inhabitants of Oakland, 89 Me. 426; DeLapp v. Beckwith, 114 Mich. 394; Cook v. Hecht, 64 Mo. App. 273; Engleman v. Longhorst, 120 N. Y. 332, 24 N. E. 476; State v. Britt, 118 N. C. 1255; Silverthorne v. Parsons, 60 Ohio St. 331, 54 N. E. 259. A highway may be erected through affirmative action of all the parties interested though not complying with statutory provisions. 578 Cater v. N. W. Telep. & Exch. Co., 60 Minn. 539, 28 L. R. A. 310; Huddleston v. City of Eugene, 34 Or. 343, 55 Pac. 868, 43 L. R. A. 444; Elliott, Roads & St. (2d Ed.) §§ 398, 408. Lewis, Em. Dom. (2d Ed.) §§ 126 et seq. 579 Kincaid v. Indianapolis Nat. Gas Co., 124 Ind. 577, 8 L. R. A. 602; Haight v. City of Keokuk, 4 Iowa, 199; Van Brunt v. Town of Flatbush, 128 N. Y. 50, 27 N. E. 973; State v. Davis, 55 Ohio St. 15; Oregon City v. Moore, 30 Or. 215; Dillon, Mun. Corp. (4th Ed.) § 676. See, also, cases cited in preceding note and the subject further considered in §§ 818, 825, 828, post. 580 Chicago & N. P. R. Co. v. City of Chicago, 174 Ill. 439, 51 N. E. 596. Where the law requires the establishment of a grade by the adoption of an ordinance in the prescribed manner, the passage of a mere resolution is not sufficient to establish the grade of the streets designated by it. Gould v. Schermer, 101 Iowa, 582; American Savings & Loan Association v. Burghardt, 19 Mont. 323; Themanson v. City of Kearney, 35 Neb. 881, 53 N. W. 1009; Ware v. Borough of Rutherford, 55 N. J. Law, 450, 26 Atl. 933; Hosmer v. City of Gloversville, 27 Misc. 669, 59 N. Y. Supp. 559; Archer v. City of Mt. Vernon, 63 App. Div. 286, 71 N. Y. Supp. 571; Wilder v. City of Cincinnati, 26 Ohio St. 284; Sweet v. and construct it upon the gradients determined upon.581 As already stated, the power to open a highway also carries with it the power to make, ordinarily, the usual or necessary repairs and improvements. It may be found necessary, for the greater convenience of the public after a highway has once been established and graded, to change its roadway by altering the gradients and thus changing its line of grade with reference to adjoining property. The grant of the right to grade a highway, express or implied, carries with it the power, without the consent of property owners, to change the grade.582 Stated differently, the power to Conley, 20 R. I. 381, 39 Atl. 326; Webster v. White, 8 S. D. 479; Page v. Belvin, 88 Va. 985, 14 S. E. 843. of 581 Smith V. Corporation Washington, 20 How. (U. S.) 135; Goszler v. Corporation of Georgetown, 6 Wheat. (U. S.) 593; Himmelmann v. Hoadly, 44 Cal. 213; Palmer v. Burnham, 120 Cal. 364, 52 Pac. 664; Flinn v. Mowry, 131 Cal. 481, 63 Pac. 724; German Savings and Loan Society v. Ramish (Cal.) 69 P. 89; Fellowes v. City of New Haven, 44 Conn. 240; Whaples v. City of Waukegan, 95 Ill. App. 29; Burr v. Town of New Castle, 49 Ind. 322; Barfield v. Gleason, 23 Ky. L. R. 128, 63 S. W. 964; Keough v. City of St. Paul, 66 Minn. 114, 68 N. W. 843; Taylor v. City of St. Louis, 14 Mo. 20; Townsend Jersey City, 26 N. J. Law (2 Dutch.) 444. The power to grade streets though the street is occupied with a plank road constructed under authority of a legislative grant to a private corporation. Ball v. City of Tacoma, 9 Wash. 592. But see City of Napa v. Eastterby, 61 Cal. 509, as construing special charter provisions. V. 582 Williams v. City of Portland, 19 Can. Sup. Ct. 159; City of Little Rock v. Katzenstein, 52 Ark. 107; Thorn V. West Chicago Park Com'rs, 130 Ill. 594; Egbert V. Lake Shore & M. S. R. Co., 6 Ind. App. 350. The inherent right in municipal authorities to change the grade of a street cannot be delegated for the private advantage of a railroad company. Macy v. City of Indianapolis, 17 Ind. 267; City of Lafayette v. Bush, 19 Ind. 326; Matingly v. City of Plymouth, 100 Ind. 545; Creal v. City of Keokuk, 4 G. Green (Iowa) 47; Dudley v. Tilton, 14 La. Ann. 283. The right to re-grade a public way is ultimately vested in the public authorities. Karst v. St. Paul, S. & T. F. R. Co., 22 Minn. 118; Saxton Nat. Bank v. Bennett, 138 Mo. 494, 40 S. W. 97; Estes v. Owen, 90 Mo. 113, 2 S. W. 133; State v. Jersey City, 52 N. J. Law, 490, 19 Atl. 1096; Inhabitants of Trenton v. McQuade, 52 N. J. Eq. 669, 29 Atl. 354; Fish v. City of Rochester, 6 Paige (N. Y.) 268; Waddell v. City of New York, 8 Barb. (N. Y.) 95; Farrington v. City of Mt. Vernon, 166 N. Y. 233, 59 N. E. 826; Columbus Gas, Light & Coke Co. v. City of Columbus, 50 Ohio St. 65, 33 N. E. 292, 19 L. R. A. 510. The power to grade streets is a continuing one and conferred upon municipal author establish the grade of a highway is ordinarily a continuing one and is not exhausted by its once exercise. This principle applies, it must be understood, only in determining the rights of abutting property owners where a change in grade has been made which results in an interference with or a damage to their property. The legislature unquestionably has the right to authorize public corporations acting through their proper officials to change the grade of a highway as often as may be found necessary to meet changed conditions or for the greater convenience of the public.583 The material question is where the grade of the street has once been established and fixed, and abutting property owners have constructed improvements upon the street or highway, with reference to the established grade, whether they are not entitled to compensation for the damage or injuries they may suffer by reason of the change in grade.584 The authorities in this country upon this question are not at variance and almost uniformly maintain the doctrine that under such circumstances the adjoining property owner is not entitled to consequential damages,585 though ities for the public benefit; it is not exhaused by its once exercise, nor can it in the absence of statutory authority be ceded or bargained away. Wistar v. Philadelphia, 80 Pa. 505. But see Murphy v. City of Boston, 120 Mass. 419. 583 City of Lafayette v. Fowler, 34 Ind. 140; Wolfe v. Pearson, 114 N. C. 621, 19 S. E. 264. See, also, cases cited under preceding note. 584 City of Delphi v. Evans, 36 Ind. 90; Chase V. Sioux City, 86 Iowa, 603, 53 N. W. 333; Blanden v. City of Ft. Dodge, 102 Iowa, 441, 71 N. W. 411. A request for the regrading of a street will not constitute an estoppel so as to preclude a property owner from claiming damages because of a change of grade. City of Newark v. Sayre, 41 N. J. Law, 158; People v. Gilon, 76 Hun, 346, 27 N. Y. Supp. 704; Clark v. City of Philadelphia, 171 Pa. 30, 33 Atl. 124. The mere establishment of a grade on paper prior to the one which was consummated by physical construction cannot be considered. See, also, authorities cited generally under this section. 585 Smith v. Corporation of Washington, 20 How. (U. S.) 135; City of Denver v. Vernia, 8 Colo. 399; Healey v. City of New Haven, 47 Conn. 305. A promise of the municipal authorities to a landowner of compensation for consequential damages caused by change of grade when authorizied by law is not binding. Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457, 14 L. R. A. 370; Markham v. City of Atlanta, 23 Ga. 402; City of Rome v. Omberg, 28 Ga. 46; Macy v. City of Indianapolis, 17 Ind. 267; Cheever v. Shedd, 13 Blatchf. 258, Fed. Cas. No. 2,634; Baker v. Town of Shoals, 6 Ind. App. 319, 33 N. E. 664; Cole v. City of Muscatine, 14 Iowa, 296; Russell v. City of Burlington, 30 Iowa, 262; Meyer v. City of Burlington, 52 Iowa, 560; Farmer v. City of Cedar Rapids, 116 Iowa, 322, 89 N. W. 1105; Methodist Episcopal Church v. City of Wyandotte, 31 Kan, 721. Callender v. Marsh, 18 Mass. (1 Pick.) 418. "The streets on which the plaintiff's house stands had become public property by the act of laying them out conformably to law, and the value of the land taken must have been either paid for, or given to the public, at the time, or the street could not have been legally established. Being legally established, although the right or title in the soil remained in him from whom the use was taken, yet the public acquired the right, not only to pass over the surface in the state it was in when first made a street, but the right also to repair and amend the street, and, for this purpose, to dig down and remove the soil sufficiently to make the passage safe and convenient. Those who purchase house lots bordering upon streets are supposed to calculate the chance of such elevations and reductions 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 indemify themselves in the price of the lot which they buy, or take the chance of future improvements, as they shall see fit. The standing laws of the land giving to surveyors the power to make these improvements, everyone who purchases a lot upon the summit or on the decline of a hill, is presumed to foresee the changes which public necessity or conven ience may require, and may avoid or provide against a loss." City of Pontiac v. Carter, 32 Mich. 164; City of Detroit v. Beckman, 34 Mich. 125; Lee v. City of Minneapolis, 22 Minn. 13; Henderson V. City of Minneapolis, 32 Minn. 319; Willis v. City of Winona, 59 Minn. 27, 60 N. W. 814, 26 L. R. A. 142. A city is not liable for damages caused by the construction of a wagon bridge in the absence of a statute or city charter imposing such liability. Tate v. Missouri, K. & T. R. Co. 64 Mo. 149; Benden v. Nashua, 17 N. H. 477. Radcliff's Ex'rs v. City of Brooklyn, 4 N. Y. (4 Comst.) 195. "The common council of the city of Brooklyn has ample authority to lay out, open, grade, level and pave streets within the city. When lands are taken for a street, the owner is to be paid his damages, to be assessed by commissioners. But there is no provision for paying consequential damages, or such as may result to persons whose lands are not taken. (Stat. 1833, p. 499, §§ 1, 2, 16; id. 1838, p. 119, §§ 1, 2.) Such is my construction of the statutes touching the question. Furman Street lying west of the testator's premises, had been laid prior to the digging of which the plaintiffs complain; but it had not then been opened or used as a highway. The digging was done in the site of the street for the purpose of grading and levelling the same for public use. There was no excavation or any other act done by the defendants in or upon the testator's land. But in consequence of digging away the bank in the site of the street, which |