subdivision 4, of the act of 1856, known as the Consolidation Act. The cause will be considered on this admission of ample power in the defendant to do the work of filling and grading Army street.

The defendant, the city and county of San Francisco, being engaged in a lawful work authorized by the statute, it would seem strange that it should be held liable for any injury resulting from such work, if done in a lawful and proper manner, unless such liability is imposed by statute or the organic law of the state.

We do not understand counsel for plaintiffs to put forth any contention contrary to the rule above indicated. If the defendant was empowered by law to do the work counted on, in Army street, the averment in the complaint, that such work was unlawful and wrongful, would amount to nothing. Such epithets in a pleading are in general meaningless. They may be and are generally inserted with no valuable purpose but only to round off or swell out a sentence. Unless the matters averred show the acts complained of to be unlawful or wrongful, such words are mere superfluous verbiage. They may and should be rejected as surplusage. It being conceded here, that the defendant was engaged in a work authorized by law, we may reject the words "unlawfully" and "wrongfully" from the allegations of the complaint.

One of the main contentions of the plaintiffs is that the defendant did the work unlawfully and negligently, for the reason that after being warned by notice, that it was by its acts inflicting damage on the property of plaintiffs it continued to do the work inflicting such damage without making use of any measures or taking any steps to prevent it.

Does any such obligation, aside from a statute or constitutional provision imposing it, rest on the defendant in this case? It is not averred that the plaintiffs took any steps to ward off or prevent the damage resulting from the work, though they knew it was going on. We must hence conclude that they did not. We are not authorized to assume that they, the plaintiffs, took any such steps without averment and proof, and neither appear here. Applying the maxim "de non apparentibus et de non existentibus eadem est ratio:" see Broom's Leg. Max., 6th edit., p. 163; and this is a proper case for its application, we are authorized to assume and hold that plaintiff stood by, calmly contemplated the injury to their property going on before their eyes, and took no steps to prevent it. The further question arises, was it not a duty imposed by law on the plaintiffs themselves, to take and adopt measures of prevention?

*

Nothing appearing to the contrary, we are bound to assume that the land in the street was acquired by defendant for a public purpose by lawful means and in a lawful manner. The injury was caused by the defendant improving the property, a public highway, which under the law, it was entitled as an agent of the state, to improve in the manner it was engaged in doing. No property of the plaintiffs was taken. It is only claimed to be damaged. The defendant engaged in doing a lawful work in the way of improving

such property and constructing a highway for the use and benefit of the public, and in an especial manner for the persons owning property abutting on it, to which class plaintiffs belonged, caused the damaged complained of.

We are of opinion that the law is well settled that when a municipal corporation like the defendant is engaged in doing such work as is set forth in the complaint, in a lawful manner and without malice, no liability for damages attaches to it, unless such liability is imposed by some statute law, or the organic law of the state. The law is thus stated in Transportation Co. v. Chicago, 99 U. S., 635. In doing the work, the municipality was acting as the agent of the state, which had control over all highways, performing a public duty imposed on it by law. The supreme court of the United States, in the case just above cited, said, speaking by Strong, J.: "It is undeniable that, in making the improvement of which the plaintiffs complain, the city was the agent of the state, and performing a public duty imposed upon it by the legislature; and that persons appointed or authorized by law to make or improve a highway, are not answerable for consequential damages, if they act within their jurisdiction, and with care and skill, is a doctrine almost universally accepted, alike in England and in this country. It was asserted unqualifiedly, in The Governor and Company of the British Cast-Plate Manufacturers v. Meredith, 4 Durnf. & E., 794; in Sutton v. Clarke, 6 Taun., 28; and in Boulton v. Crowther, 2 Barn. and Cress., 703. It was asserted in Green v. The Borough of Reading, 9 Watt's Pa., 382; O'Connor v. Pittsburg, 18 Pa. St., 187; in Callendar v. Marsh, 1 Pick., Mass., 418; as well as by the courts of numerous other states. It was asserted in Smith v. The Corporation of Washington, 20 How., 135, in this court, and it has been held by the supreme court of Illinois. The decisions in Ohio, so far as we know, are the solitary exceptions. The doctrine, however it may at times appear to be at variance with natural justice, rests upon the soundest legal reason. The state holds its highways in trust for the public. Improvements made by its direction, or by its authority, are its acts, and the ultimate responsibility, of course, should rest upon it. But it is the prerogative of the state to be exempt from coercion by suit, except by its own consent. This prerogative would amount to nothing if it does not protect the agents for improving highways which the state is compelled to employ. The remedy, therefore, for a consequential injury resulting from the state's action through its agent, if there be any, must be that, and that only, which the legislature shall give. It does not exist at common law. The decisions to which we have referred, were made in view of Magna Charta, and the restriction to be found in the constitution of every state, that private property shall not be taken for public use without just compensation being made. But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional

provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority:" 99 U. S., 641-642. See, also, Radcliff's Exors. v. Mayor, etc., of Brooklyn, 4 Comst., 195.

We think, also, that in accordance with the rule laid down in Shaw v. Crocker, 42 Cal., 435, that there being no statute or constitutional provision changing the rule, the plaintiffs were bound to take steps to protect their own property from injury. In this case it appears that the plaintiff was the owner of several lots in Sacramento, fronting on First street, and of several frame buildings erected thereon. She substantially averred that the defendant and his servants wrongfully entered upon said lots and "unlawfully, willfully, carelessly and negligently threw, deposited and forced stones, gravel and earth, and other solid and weighty substances, upon and against such buildings, and upon and against the timbers supporting the same," whereby the timbers were forced from their places, and the buildings were thrown down and destroyed.

The defense to the action on which the court passed was that the defendant was employed by the city of Sacramento to raise the grade of First street in front of plaintiff's premises, and that he performed the work in accordance with the contract, under the orders and directions of the trustees of the city and its officers authorized by law to superintend the same; that the work was performed in a proper, discreet and careful manner, doing no more damage than was necessary; that the plaintiff's buildings were located on or near the street, and that the plaintiff had due notice of the grading of the street, and might, by the exercise of reasonable care, have protected the buildings from damage, but negligently omitted to do so, whereby the buildings fell down and were destroyed without any fault of the defendant.

The court proceeded to observe, through Crockett, J., as follows:

"At the trial the plaintiff proved the value of the buildings, and that they were thrown down and destroyed by the pressure of the earth, and other materials deposited in the street by the defendant in raising the grade under his contract. The plaintiff then rested, and the defendant moved for a nonsuit, on the ground that there was no evidence tending to show that the work was performed in a careless or improper manner, or that the damage was owing to any carelessness or negligence on the part of the defendant, his agents, or servants. The motion was denied, and the defendant excepted and assigns this ruling as error.

"After careful examination of the evidence in chief for the plaintiff, I discover none which tended in the slightest degree to prove that the work of grading the street was performed in an improper, careless or negligent manner, or that the damage to the plaintiff's property resulted in any degree, from a want of proper care or skill on the part of the defendant or his servants. It was provel that the plaint

iff had notice of the grading of the street, and some days before the buildings were damaged sent a carpenter to examine them, who reported to her that they could be protected from injury by the erection of a bulkhead; but she made no effort to erect it, so far as the proof shows. The city had the right to raise the grade of the street; and if the contractor performed the work with proper care and skill he is not responsible for any damage which may have resulted to the contiguous property. This is settled by an overwhelming weight of authority, and is apparently conceded to be the law by the plaintiff's counsel: 4 Durnf. & East, 794; 1 Denio, 595; 9 Watts, 382; 1 Pick., 418; 12 Mass., 220; 6 Wheat, 593; 12 Mo., 414; 1 Comst., 195, 203:" 42 Cal., 437.

In the case just re marked on, the facts showed more of a physical invasion of the land than the case under consideration, and came near a taking of the property. The land on which the buildings stood was so covered with earth and other heavy material, that the buildings were by such material forced from their foundations and destroyed as buildings. In the case before us there was no entry on the plaintiffs' property, nothing thrown, forced or deposited on it, but in consequence of the pressure of the weighty deposit on the soil underlying the street and the earth beneath, and the soft, yielding nature of such underlying stratum the lot of plaintiffs was forced outwards and upwards, and in consequence the foundations of the houses on it were injured. There was no entry on the adjacent land, and no physical invasion of it is averred.

Following, then, the rule of Shaw v. Crocker, supra, which we approve, we are of opinion that the obligation to support the foundations of the buildings and to take care that their property should receive no damage, rested on plaintiffs, and that they, and not the defendant, are amenable to the charge of negligence and want of proper care: See, also, Transportation Co. v. Chicago, and Radcliff's Exors. v. Mayor of Brooklyn, supra. Such damages as were sustained in Shaw v. Crocker are consequential, and are not the subject of an action which can be maintained, without some provision of law, statutory or constitutional, giving it.

But the contention is also put forth by the plaintiffs that the constitution comes to their relief and that they are entitled to recover by virtue of the provision of the organic law of the state, which prescribes as a paramount rule that "private property shall not be taken or damaged for public use without just compensation having been first made or paid into court for the owner:" Const. Cal., art. I, sec. 14.

It is well known that the clause as to the protection of private property against an appropriation for public use, was changed by the constitution adopted in 1879, and is no longer as it was under the former constitution, "nor shall private property be taken for public use without just compensation:" Const. of 1849, art. I, sec. 8. The words above quoted show some of the changes, indeed all of them, that require notice here. As the clause now stands, private

property cannot be damaged for public use, without just compensation having been first made or paid as prescribed.

Are the plaintiffs then entitled to recover of defendant under this constitutional guarantee against damage? This question is new in this court, this being the first cause coming before it, since the adoption of the present constitution, requiring the decision of this question.

To what kind of damage does this word "damaged" refer?" We think it refers to something more than a direct or immediate damage to private property, such as its invasion or spoliation. There is no reason why this word should be construed in any other than its ordinary and popular sense. It embraces more than the taking. If it did not refer to more than the damage above mentioned, the word damaged in the clause relied on would be superfluous. It seems to us that the direct invasions spoken of would come within the clause as it stood in the constitution of 1819. If the word "damaged" only embraced physical invasions of property, the right secured by this word would add nothing to the guarantee as it formerly stood. In the case above cited from 99 U. S., the court said, referring to a clause in the constitution of Illinois similar to that in the constitution of this state in force since 1879, that "this is an extension of the common provision for the protection of private property:" P. 642. The remark may have been obiter, as the case before the court was one occurring prior to the insertion of the clause in the Illinois constitution, but it seems to have been concurred in by the whole court, and if not so concurred in, it was the dictum of an able and learned jurist, whose judgment is entitled to and should receive great respect. And it will occur to any one reflecting on the import of the clause, that if it was not an additional guarantee to the common and usual one, its insertion was idle and unmeaning. The same is held by the highest judicial tribunal in Georgia, in City of Atlanta v. Green, 67 Ga., 386, in which state there is a like provision in the constitution. We will refer to this case at some length. The declaration contained two counts. The first charged the defendant below (the city of Atlanta) with damages to plaintiff's lot by reason of its negligence in throwing earth on her lot in the grading of a street in said city, and thereby causing the overflow of her premises with sand and water, destroying her garden and rendering it unfit for use and cultivation. The second count was for damages to her lot, resulting from the grading of the street bounding the same by raising the level of said street fifteen feet higher than it was originally, opposite plaintiff's lot, thereby permanently injuring her property and her fences, and making it difficult for her to have access to her home.

The city tendered the following request to the court to be given to the jury:

"The city would have a right to grade the street in question, and no right of action would accrue to plaintiff from injuries caused by ch grading, unless there was a direct invasion of the plaintiff's