Lampe

Action to recover damages from defendant. Demurrer sustained to complaint. Plaintiff declined to amend and judgment was entered for defendant. This appeal is from the judgment. The complaint, after alleging that defendant is a municipal corporation, states that defendant, in accordance with law, established the official grade of Sanchez street, between Liberty and Twenty-first streets, and thereafter proceeded to fill in and raise said Sanchez street about five feet above its natural and original grade, and about five feet above the natural level of plaintiff’s lot, thus causing an embankment about five feet high in front of the lot of plaintiff. It is stated in said complaint:

The complaint further alleges damage by reason of a sewer and foul odors therefrom. The demurrer was upon three grounds: 1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That it is ambiguous, uncertain, et cetera; and 3. That there is a misjoinder of causes of action united in the same count, and not separately stated. Counsel for appellant, in their brief, say that no damage is claimed and no relief is asked on account of the sewer, and that the allegations of the…

Having dissented from the order denying a rehearing of this case, I wish to state that my reason for so doing is that this opportunity for reviewing and if possible reconciling a series of apparently conflicting decisions upon a question of vital importance should not be lost. This case, in my opinion, is in conflict with Eachus v. Railway Co., 103 Cal. 614 , as that was in conflict with Corcoran v. Benicia, 96 Cal. 1 . In the Corcoran case, as in this case, it was held that the plaintiff had no right of action. In the Eaehus case, supra, it was held that he did have a right of action, and if, as I contend, the three cases are all governed by the same principle, it is time that the court should plainly declare what the rule is with respect to the right to damages in all cases, or what the distinction is between the two classes of cases if there is a distinction.

It is held that the owner of a low lot flooded with surface water by the grading of a street is entitled to no compensation *550 for the damage. At the same time it is held that the owner of a high lot made difficult of access by lowering the surface of the street to bring it to the established grade is entitled to…