City of Louisville vs. Louisville Rolling Mill Company.

1st. Prescription implies a grant; but, if the city authorities could have granted away, air and light, so as, in any respect, to cripple its necessary power to fulfill its trust for the public good, no such grant could be presumed without a continuous enjoyment for at least twenty years; but, in this case, the assumed privilege was interrupted from 1848 to 1850, and it was never enjoyed where it is now claimed until the present structures were completed in 1863; consequently, there is no available title by prescription.

2d. The city curators of the streets must have power to grade and preserve them, from time to time, so as faithfully to execute their trust in such manner as best to subserve the public interest in the free and unobstructed use of them; and no such fiducial power can be bargained away. If regrading became useful for faciliating safe and convenient use by the public, as the power to so regrade cannot be alienated by express contract, it cannot be lost by implied contract; for the law could not imply a contract when an express agreement to the same effect would be void; consequently, when a lot-holder on a street adapts his improvements to the existing grade, there can be no implied obligation never to change that grade so as to make it less eligible or convenient to him, and he must be presumed to have expected to hold and enjoy his improvements, subject, whether better or worse, to the power to change. the grade as suggested by a proper regard for the common welfare. Such was the decision of this court in the case of Keasy vs. The City of Louisville, and other cases by this court, all fortified by the concurrent opinions of other American and British courts. The prin ciple is plain, and the authorities are conclusive.

3. The prudent and careful exercise of an unquestionable power cannot, in ordinary cases, be a remediable

City of Louisville vs. Louisville Rolling Mill Company.

wrong, whatever incidental damage may necessarily result from it, and cannot in this case entitle the appellee to damages to which the mill was exposed by a voluntary construction, with notice of the danger; but if individual loss or inconvenience shall have resulted from the wanton, unskillful, careless, or unnecessary mode of execution, commensurable damages might be rightfully claimed.

Without any such improper execution, consequential damage is "damnum absque injuria"-damage without wrong—an inevitable loss, but, in the technical sense, no injury, and must, as a misfortune incidental to a right act rightly done, be borne without remedy; and this, too, has been adjudged in many of the foregoing cases.

This recognized principle, when applied to this case, implies that the grade must be elevated in such a manner and left in such secured condition relatively to the mill property as to guard it against all peril or inconvenience, which could be avoided by any reasonable mode of executing the work which would fully and properly effectuate the legitimate object of the required elevation of grade. To do all this is the duty of the municipal government, and, for any essential dereliction, it would be responsible for all resulting damage. But the petition does not charge that there is danger of any such misfeasance, nor could the chancellor judicially anticipate it, but he may prevent it, not by enjoining the elevation of grade, but by preventing everything unreasonable or unnecessary in the execution of the work; and by securing the appellee against all damage which could be avoided consistently with the official duty of the appellants, to reclaim a section of their city from inundations, which must retard the improvement and impair the value of the property of that entire section, and that especially of the appellees more than any other. When the owners of

City of Louisville vs. Louisville Rolling Mill Company.

lots in that quarter bought or improved them, they must be presumed to have expected that the progress of the city would require a considerable elevation of the surface of the streets, and probably of their lots also, to rescue their property from periodical and deteriorating floods.

They bought and improved on the contingency of such necessary change; and, when the appellees made and located their present improvements, the prospect of the change they now resist was imminent; and though it may, in some degree, increase the inconvenience to which they then subjected those improvements, it may, nevertheless, be more beneficial than hurtful in the lapse of time. But however this may be, it could not be consid ered either unexpected or extraordinary; because an elevation so obviously useful and adaptable to that section ought to have been expected, and, in the relative sense, should not be deemed locally extraordinary. If the appellees may enjoin, every other lot-holder in the same quarter may do the same; and thus an improvement necessary for all, and almost exclusively useful to all of that section, may be forever prevented unless the owners of that local property will do, as perhaps they ought to do, the work at their own expense, or unless the city will do it and pay damages, at enormous cost to citizens who have comparatively but a very remote and slight interest in securing the property of others and enhancing its value.

Private property should not be taken or injured for the public benefit without compensation or the owner's consent. But tenure of lots in a city implies the consent of the owners to useful and natural changes in the grade of the streets; and the question here is, whether, considering the local liability to inundations, the contemplated change in Brook street is indicated by the natural surface, and will be useful to the local public. If so, the

City of Louisville vs. Louisville Rolling Mill Company.

city has a right to change the grade without paying damages to the owners of ground on that street, who hold subject to an implied consent to any such necessity, as much in this case as in that of Keasy, supra.

The judicial conclusion from the foregoing considerations is, that as there is no alleged or presumable danger of damage from a mal-execution of the work interdicted by the chancellor, he ought to have dissolved the injunction suspending the work altogether, and held the parties still in court for the ulterior purpose of regulating, on supplemental pleadings or otherwise, the execution of the work so as to prevent all unnecessary damage to the appellee, which may be avoided without impairing the just rights of the appellant and the public.

Wherefore, the judgment is reversed, and the cause remanded, with instructions to dissolve the injunction and hold the case for the purpose just indicated.

NOTE BY REP.-The foregoing was prepared by JUDGE ROBERTSON as for the opinion of the Court-a majority of the Court not concurring with him, it was delivered as his dissenting opinion.

Stewart vs. Harry.

1.

CASE 95-PETITION ORDINARY-MAY 28.

Stewart vs. Harry.

APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.

The Federal courts, under the act of Congress of 1789, known as the judiciary act (1 Brightley, 230), have exclusive jurisdiction of all cases in admiralty arising on waters navigable from the sea by vessels of ten or more tons burden; saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it.

2. All State laws conferring jurisdiction upon State courts in cases of admiralty, of which the Federal courts have exclusive jurisdiction under the act of Congress of 1789, are unconstitutional and void to the extent they infringe said act of 1789, and only to that extent. (The Hine vs. Trevor, 4 Wallace, 555; The Moses Taylor, Ibid, 411; 22. Howard, 243.)

3.

4.

The distinguishing and characteristic feature of a sait in admiralty is, that the vessel or thing proceeded against, is itself, seized and impleaded as a defendant, and is judged and sentenced accordingly. It is this dominion of the suit in admiralty, over the vessel or thing itself, which gives to the title made under its decrees validity against all the world. By a common law process, whether of mesne attachment or execution, property is reached only through a personal defendant, and then only to the extent of his title. (The Moses Taylor, 4 Wallace, 427; Broadwell vs. Swigert et al., 7 B. Mon., 39.) The State courts have jurisdiction in cases of collision between two boats the result of mutual and equal fault-in a personal action, by the owner of one boat, against the owner of the other, to recover such amount, as will apportion the loss ensuing from the collision between the two boats, according to their relative value, as provided in section 16, chapter 7, of the Revised Statutes (1 Stanton, 207). It is not a proceeeing in rem against the hoat, but a personal action against its owner, resulting in a personal judgment against him. Said statute is regarded in this case as simply modifying the common law remedy. The State court has jurisdiction according to the express reservation in the act of Congress of 1789, "saving to suitors in all ases the right of a common law remedy where the common law is competent to give it."