frame and a brick house upon them, and had occupied one as a residence, and rented the other; that the improvements were worth about $5000, and the witness thought the lots and improvements were worth about ten or twelve thousand dollars before the railways were put in the street,-afterward could not sell at all,— no market; that the rental value decreased by reason of the railways in the street. The price paid for the lots in 1874 could certainly have no legitimate bearing upon the witness' testimony in chief, nor upon any question in the case. 2. Appellant's witness, Ewing, was asked by appellant whether the market value of property on Wewatta street had been increased or decreased by the construction of the railways thereon, and it is assigned and argued here as error that the court sustained the objection of appellee thereto, but the record shows that the objection was withdrawn; that the court made no ruling thereon; that the witness fully answered the question, as well as all others asked of him; and that no other objection at all was made to the questions asked the witness. ΤΟ 3. Appellant requested the following instruction: "The court is requested to instruct the jury that, in determining the question of the damages to plaintiff's property, they may conINSTRUCTIONS AS sider the nature of the property, and the tendency to great fluctuations in values in this community; and, if it should appear that plaintiff's property is depreciated in value, it must also appear to their satisfaction that the construction of defendant's track has been the sole cause of such depreciation, and, unless this be proved to their satisfaction, then their verdict should be for the defendant." Given by the court, modified and enlarged as follows: "The court instructs the jury that, in determining the question of damages to plaintiff's property, they must consider the nature of the property, and the tendency to fluctuations in value of such property in this community; and, if it should appear that plaintiff's property is depreciated in value, it must also appear to their satisfaction that the construction of defendant's track, and the maintenance and operation of its railroad, has been the cause of such depreciation, and unless this be proved to their satisfaction then their verdict should be for the defendant. By which the court means that you cannot, in your verdict, justly assess any damages against defendant which have re sulted to plaintiff's said property from any other cause than from the construction, maintenance, or operation of defendant's own railroad; and that, if you find there is no depreciation in the market value of said property from such sole cause, then your verdict should be for defendant." The instruction as requested was fatally defective, in excluding from the consideration of the jury the effect of the operation and maintenance of the railway upon the There was no error in the instruction as, given. street. It follows that the decision in the case of Railway Co. v. Bourne is decisive of this case; and for the reasons there stated the judgment in this case should be affirmed. We concur: DE FRANCE, C.; RISING, C. PER CURIAM. For the reasons assigned in the foregoing opinion the judgment is affirmed. See Columbus, etc., R. Co. v. Gardner, and note, infra. SHEEHY v. KANSAS CITY CABLE R. Co. (Advance Case, Missouri. March 19, 1888.) Under the Missouri constitution (Const. 1875, art. 2, sec. 21), the owner of property abutting on a street may maintain an action against a cable street-railroad company, authorized by the city to change the established grade of the street, for injury resulting to his property by such change. And the measure of damages is the difference in the market value of the property before and after the grade of the street is altered. Where there is any evidence in such a case tending to sustain the finding of the amount of damage, the court will not weigh the proof on a question of excessive damages, unless the verdict is such as to induce the belief that it is the result of passion, prejudice, or corruption. And where there was evidence of the amount found, and the jury had before them, in the form of plats and photographs, the physical facts bearing on the question of damages, it cannot be said there was no evidence to uphold the finding. APPEAL from a judgment of the Jackson circuit court, Slover, J., against defendant in an action for damages for lowering the grade of a street for a cable-car track in front of plaintiff's premises. Affirmed. The facts are stated in the opinion. FACTS. NORTON, Ch. J.-Plaintiff, as the owner of a certain lot in Kansas City with three dwelling houses upon it, with a frontage of 192 feet on Ninth, and 50 feet on Jefferson, street, in said city, sues for damages to said property, alleged to have been occasioned by the act of defendant in cutting down and lowering the grade of said Ninth street below the grade established in 1879, when said houses were built on said lots. Defendant justified the act under an ordinance of the City of Kansas, approved April 4, 1883, authorizing J. W. Smith and others to construct and operate. for the term of thirty years, an endless cable street railroad on and over certain streets, one of them being said Ninth street from Grand avenue west to the west boundary line of Coates's Addition. This ordinance authorizes a change in the grade of Ninth street in front of plaintiff's lot; and the evidence shows that the grade was, by defendant, cut down and lowered below the grade established in 1879, 20 feet at the west end of plaintiff's lot, 15 feet and 3 inches opposite the west house on said lot, 6 feet at the middle house; and that the two grades came together at the west line of Jefferson street. In regard to the damage occasioned by this change of grade to plaintiff's property, the evidence is conflicting; and on the trial judgment was rendered for plaintiff for $5000, from which defendant has appealed, and seeks a reversal for alleged error in the action of the court in giving and refusing instructions, and because the damages are excessive. The court, as shown by the instructions given, as well as by those refused, tried the case on the theory that, while the city had the right by ordinance to change the grade of said street in front of plaintiff's property, and to authorize defendant to make such change, still the defendant was liable for any damage resulting to plaintiff by reason of such change. It is insisted by counsel that this theory was erroneous, and that the city being fully empowered by its charter to grade, alter, and change the grade of its streets, and having changed the grade of Ninth street at this locality by ordinance, and authorized and permitted defendant to grade the same for the purpose of constructing its road thereon, it is not liable for damages resulting therefrom. This point is not well taken. Anterior to the adoption of the constitution of 1875, and as far back as the case of St. Louis v. Gurno, 12 Mo. 414, it was the established rule in this CABUT State, that, where a municipality was invested with the TITLED TO DAM- control of its streets, and the power to fix, alter, and change the grade of the same, any damage resulting to an abutting property owner from the change of grade was damnum absque injuria, unless the injury could be shown to have resulted from the negligent or improper manner in which the work was done. UNDER CONSTI- TING OWNER IS EN AGES. Const. 1875, art. 2, § 21, which provides that "private property shall not be taken, or damaged, for public use without just compensation," has changed this rule. Werth v. Springfield, 78 Mo. 107. In this case it is held that, "when property is damaged by establishing the grade of street, or by raising or lowering the grade of a street previously established, it is damaged for public use within the meaning of the constitution." It is clear that the City of Kansas, under its charter, had the power to change the grade of Ninth street, and it is equally clear, under the provisions of the constitution above quoted, that if, in the exercise of that power, the property of an abutting owner was damaged, such owner would be entitled to recover such damages from the city. And if such liability would attach to the city, it necessarily and logically follows that a railroad company which had the right conferred on it to alter the grade of the street for the purpose of constructing its road would also be liable to an abutting property owner for damages to his property by reason of such alteration. In such case the privilege granted the railroad "would be yoked with a liability." That the owner of property abutting on a street has such an easement therein as would support an action for damages peculiar to him is sustained by the following cases: Lackland v. North Missouri R. Co., 31 Mo. 180; Werth v. Springfield, supra; Householder v. Kansas City, 83 Mo. 488; McElroy v. Kansas City, 21 Fed. Rep. 257; Story v. New York Elevated R. Co., 90 N. Y. 122; s. c., 7 Am. & Eng. R. R. Cas. 596; Lahr v. Metropolitan Elevated R. Co., 104 N. Y. 268; Gulf, C. & S. F. R. Co. v. Eddins, 60 Tex. 663; Cross v. St. Louis, K. C. & N. R. Co., 77 Mo. 318. The theory upon which the court tried the case, as embraced in the instructions, was a correct one. It is insisted that the damages awarded by the jury are excessive, and that the judgment, for that reason, should be re versed. MEASURE OF The court told the jury that the measure of damages was the difference in the market value of the property before and after the grade of the street was lowered. As to the amount or extent of the damages the evidence is conflicting. Plaintiff, who testified in his own behalf, put the value of the property, before the change of grade, at $15,000, and after it was made, at $7500, and stated that its rental value was reduced $27 per month; that it was injured for the purpose of future improvements $3750, and $3750 without reference to such future improvements. Two other witnesses put the value of the property at about $14,000 before the change, one of them stating that by the change its value had been depreciated 50 per cent, the other that its value per front foot had been lessened $15 or $20 per foot on Ninth street, and that it affected the improvements a good deal. Besides this evidence certain plats and photographs were put in evidence, showing the original surface of the ground on Ninth street in front of plaintiff's property, the grade as fixed by the ordinance of March 1879, the grade as established by the ordinance of April, 1883, the grade as actually made by defendant, and the location of the houses on the land. On the other hand, a number of witnesses on the part of defend ant expressed the opinion that the property was worth as much after the street was graded as it was before. While it might appear to us that, according to the weight of evidence, the damages awarded are excessive, this, under our rulings, is not sufficient to justify a reversal of the judgment, unless they are so excessive as to induce the belief that the verdict was the result of prejudice, passion, or corruption. Goetz v. Ambs, 27 Mo. 28; Bank of North America v. York, 89 Mo. 369. When there is any evidence tending to sustain the finding, this court will not weigh such evidence. Bush v. Christian, 53 Mo. 483; 56 Mo. 479; 58 Mo. 429; 60 Mo. 572. In view of the evidence of plaintiff, Case, and Hutchins, and the fact that the jury had before them, in the form of plats and photographs, the physical facts bearing upon the question of damages, it cannot be said that there was no evidence tending to uphold the finding as to the amount of damages sustained. In such a case, under the rule adopted by this court as above cited, and adhered to with great tenacity, we do not feel at liberty to interfere with the judgment on the ground that the verdict is against the weight of evidence as to the damages awarded. The judgment is affirmed, with the concurrence of the other Judges, except RAY, J., absent. See Columbus, etc., R. Co. v. Gardner, and note, infra. PRATT et al. V. DES MOINES NORTH WESTERN R. Co. (Advance Case, Iowa. January 28, 1887.) Where the right of the owner of property abutting on a street to recover damages against a railroad company for the use and occupation of the street for its tracks depends entirely upon statute, and the owner has no title or interest whatever in or to the street, and such damages have not been ascertained and paid at the start, an action therefor is barred after five years. In an action by an abutting property owner against a railway company for damages caused by the laying of its tracks in a street, the fact that the plaintiff's grantor consented that the road might be constructed and operated along the street may be shown by the railroad company. An abutting owner who is given by statute the right to recover damages from a railroad company, for the use and occupation of a street for its tracks, has no interest in the street, but simply a claim for damages, which may be waived or assigned in parole. The damages contemplated by Code Iowa, § 464, giving abutting owners of land a right to damages caused by construction of a railroad, being full and permanent, there can be but one recovery, and that only in favor of the |