Eachus

The plaintiffs are the owners of a lot of land in the city of Los Angeles, situate at the corner of First and Figueroa streets, having a frontage of one hundred and forty-two feet on First street and fifty feet on Figueroa street. The lot is a portion of a larger tract of land which originally belonged to the municipality, and was laid out by it into blocks and streets in 1872. The plaintiffs became the owners of the lot in 1887, and built a house thereon, in which they lived for several years. In 1891 the defendant received a franchise from the city of Los Angeles to construct a railroad along First street in said city in front of the plaintiffs’ property, and in preparing the street for the construction of its railroad made an excavation in the middle of the street to its official grade. The street is eighty-two and a half feet in width, and *616 for the purpose of laying its tracks upon the official grade of the street the excavation made by the defendant in front of the plaintiffs’ property was twenty-eight feet in depth at the corner, gradually diminishing to a depth of twenty feet at its rear, and extended to within ten feet of the boundary line of their lot fronting on the…

I dissent. When the tract of land embracing these lots was by the owners laid off into streets and squares, the plat recorded and the lots sold by reference to such recorded plat, the streets were thereby dedicated to the public, and this dedication carried with it an implied consent, binding upon the owner and its successors, that the streets might be properly graded to fit them for the purpose for which they were dedicated. Such consent was a waiver of any claim for damages to abutting lots by reason of a proper grade. Here the city has established a grade, which, so far as appears, is, with reference to the whole tract, entirely reasonable and proper, although it is an injury to these particular lots, and the defendant, in laying its track, has been required to conform to the grade so established. The owners, in my opinion, have no claim for damages for bringing the street to the established grade.

Corcoran v. Benicia, 96 Cal. 1 , 31 Am. St. Rep. 171 , seems to me to be in direct conflict with the decision here.

Rehearing denied.