The questions of law arising in this case, relating as they do to rulings of the court below upon matters of evidence and instructions to the jury, were only presentable to this court by bill of exceptions. The verdict of the jury was returned July 30, 1904. Rules 23 and 26 of the Circuit Court for the District of Washington at the time provided:

The bill of exceptions found in the record was not filed until December 2, 1904. A motion is made on behalf of the defendant in error to strike the bill of exceptions from the record and affirm the judgment appealed from on the ground that the bill was not prepared or presented to the trial judge within the time fixed by the rules, nor was there any copy of it ever served upon counsel for the defendant in error until more than a month after it was filed, in consequence of which the defendant in error had no opportunity to suggest amendments thereto, and thereby secure a full and fair presentation of the points made by the plaintiff in error. The motion is supported by affidavits of the counsel for the defendant in error, and there is no counter showing. In the affidavits of the counsel for the defendant in error it is shown that the judgment appealed from was entered on the 30th day of July, 1904, and that the bill of exceptions was not presented to the trial judge until December 2d following, at which time it was signed by the judge without any opportunity on the part of the defendant in error to offer proposed amendments to the bill; and that the counsel for the defendant in error had no notice or knowledge that such bill of exceptions would be presented to the judge, nor that it had been in fact so presented and signed by him, until a copy thereof-was served upon the counsel for the defendant in error on the 17th day of January, 1905. It is further stated in the affidavits of the counsel for the -defendant in error that the bill 'of exceptions is not a fair statement of the facts which constitute the different purported errors as set forth in the assignment of errors of the plaintiff in the case, but, on the contrary, is incomplete, and prejudicial to the defendant in error, in that the bill recites only such evidence as is favorable to the plaintiff in error; that the extracts from the instructions of the court complained of are unfair and misleading in that they do not convey the full ■or correct meaning of the court as conveyed by the instructions as given in full; that, had the bill of exceptions been served upon the defendant to the case, as required by the law and the rules of the court quoted, the defendant would have filed and served and presented to the judge who tried the case proposed amendments, which would have made the bill of exceptions complete and prejudicial to neither party, and would have enabled this court to arrive at a full and correct understanding of the facts that were introduced in evidence, touching the purported errors as set forth in the plaintiff’s assignment of errors. .Notwithstanding the rules, the court *310 did, as a matter of fact, settle the bill of exceptions contained in the record, and certified to its correctness. We must, therefore, take it that for some good reason the court vacated, or at least relaxed, its rules, and, having certified to the bill, we must accept it as it is.

It appears therefrom that in the course of the proceedings in the court below, which were instituted for the purpose of ascertaining what, if any, damages would be suffered by certain property of the defendant in error by reason of a change in the grade of certain streets in the city of Seattle, counsel for the city, which was the plaintiff in the court below and is the plaintiff in error here, asked one of the witnesses this question: “Taking the lot at the corner of lot 1 of block 22, A. A. Denny’s Addition, at the southeast corner of Pine and Third avenue, state whether or not the real property itself, not including the building, whether that would be benefited or not by this proposed regrade?” — the lot mentioned in the question being the lot owned by the defendant in error. The question was objected to by the defendant to the proceeding upon the ground that it was asking for the opinion of the witness in respect to the land, independent of the building thereon, which objection was sustained by the court, to which ruling the plaintiff reserved an exception. Further similar questions were also asked, objected to, and ruled out, whereupon, according to the bill of exceptions, the following proceedings occurred:

It is conceded that under the Constitution and statutes of the state of Washington its municipal corporations desiring to change the grade or otherwise improve their streets may offset benefits against damages. Section IS of the statute of that state, under which this proceeding is brought, is as follows:

As this is not a case of land or property taken, but only for the ascertainment of damages, if any, to property not taken, it is governed and controlled by that clause of the statute quoted providing that “in all cases the damages found in respect to land or property not taken, shall be ascertained over and above any local and special benefit arising from such proposed improvement”; that is to say, any local and special benefit that the particular property will derive by reason of the proposed improvement shall be deducted from any damages it will sustain thereby, and only such excess of damage be allowed the owner. If the particular property will derive no local or special benefit, there will, as a matter of course, be nothing to deduct from the damages, if any, sustained by the owner; and if the particular property is benefited as much as damaged, there can be no recovery, since pecuniary loss is the measure of damages in such cases. 2 Dillon on Municipal Corporations (4th Ed.) § 990, note, p. 1228. We are of the opinion that the court below was right in its rulings in respect to the questions propounded by counsel for the plaintiff seeking to obtain from the witnesses the benefits that it was claimed would result to the lot without regard to the building thereon. The land and building constituted but one piece of property, and both benefits and damages to accrue by reason of the improvement can only be properly estimated by considering the effect upon the property as a whole.

But the offer of proof made by counsel in response to the suggestion of the court did include the entire property, and we think the court was in error in rejecting it. If the proposed change in the grade of the streets would result in damage to the property in question, it would only be because it would depreciate its market value; for, as has been said, the pecuniary loss is the measure of damage in such cases. The use to which property is devoted, or for which it is suitable, having regard to the present or immediate future, is a proper element to be considered in ascertaining its market value. Boom Co. v. Patterson, 98 U. S. 403 , 25 L. Ed. 206 . So, too, in determining whether or not, in cases like the present, a change in the grade of the street will result irt damage, it is proper to consider the cost of adjusting the property (including, of course, the buildings thereon) to the new grade, the damage to trees, if any, as well as any benefit which will accrue to the property by the change. Lewis on Eminent Domain, §§ 217, 218g. But while the use to which the property is devoted is proper to be considered in estimating its market value, the mere impairment of its use for that particular purpose would not necessarily entitle the owner to damages; for if the market value of the property, ascertained by considering all of the ele *312 ments entering into that value (including the use to which it is or may be devoted), will be enhanced by the improvement, there would, manifestly, be no pecuniary loss, and therefore no legal damage. The court below was therefore also in error in instructing the jury, as it did, that, if the expense necessary to make the church building conform to the new grade and make it accessible will exceed any advantage or benefit in the use of the property, such excess should be allowed the owner as compensation for changing the grade.

The judgment is reversed, and the cause remanded for a new trial.