It is urged by the defendants that inasmuch as plaintiffs in this state can either enjoin or sue for damages in cases such as this ( Wilcox v. Engebretsen, supra; Rockridge Place Co. v. Oakland, 61 Cal.App. 791 [ 216 P. 64]), plaintiffs are not entirely without a remedy. It must be pointed out, however, that in many cases of consequential damage the remedy of injunction alone would be comparable to no remedy at all — for prior to the construction of the improvement which causes the injury it may not be apparent that damage will result, or if it is obvious that damage will result, it may be impossible to ascertain the extent thereof.
The plaintiffs, in support of their contention, refer to article I, section 14, of the California Constitution and cite the following cases: Rockridge Place Co. v. City of Oakland, 61 Cal.App. 791 [ 216 P. 64], in which the city had excavated a street and the sidewalk adjoining plaintiff's property to a depth of nearly 30 feet lower than it had formerly been, thus leaving the property at the property line on a cliff; Eachus v. Los Angeles Consol. Elec. R. Co., 103 Cal. 614 [37 P. 750, 42 Am.St.Rep. 149], where the defendant railway company, in preparing a street adjoining plaintiff's lot for the construction of its railroad, made an excavation in the street, the excavation being 28 feet in depth at one corner of the plaintiff's property, gradually diminishing to a depth of 20 feet at the other corner, and extending to within 10 feet of the boundary line of the lot fronting on the street, thus leaving the property on a bluff with no possibility of motor vehicles entering or leaving the property from the highway; Eachus v. Los Angeles, 130 Cal. 492 [ 62 P. 829, 80 Am.St. Rep. 147], wherein the city excavated the street adjoining plaintiff's property to a depth of 28 feet up to p
The purpose of this agreement was to facilitate the doing of the work which it is here claimed damaged the property, but nowhere in the agreement was there an express waiver of a possible future claim for damages, nor was any part of the consideration given by appellant expressed to be received by way of compensation for any damage to the property by reason of the improvement. The case on this phase is ruled by Rockridge Place Co. v. Oakland, 61 Cal.App. 791 [ 216 P. 64]. In that case plaintiff joined in a petition that certain street work be done.
SURE, J. — This case is almost identical with that of Rockridge Place Co. v. City of Oakland, 61 Cal.App. 791 [ 216 P. 64]. The cases were tried together upon substantially the same facts, and both involve the same points of law.
d from his property to the street, a right which is appurtenant to his lot and his private property, and therefore cannot be taken away or materially impaired or interfered with even under legislative authority without compensation. (13 R.C.L., sec. 125, p. 142, and authorities cited; Minnequa Lumber Co. et al. v. Denver, 67 Colo. 472, 186 P. 539; Chicago v. Lonergan, 196 Ill. 518, 63 N.E. 1018; Chicago v. Jackson, 196 Ill. 496, 63 N.E. 1013, 1135; Chicago M. St. P. Ry. Co. v. City of Minneapolis, 238 Fed. 384; Reardon v. City and County of San Francisco, supra; Kemp v. City of Seattle, 149 Wn. 197, 270 P. 431; Walters v. Baltimore Ohio R. Co., 120 Md. 644, 46 L.R.A. (n.s.) 1128, 88 A. 47; Dickerson v. Town of Okolona, supra; case note, 35 L.R.A. (n.s.) 1195; Schimmelmann v. Lake Shore M.S. Ry. Co., 83 Ohio St. 356, 36 L.R.A. (n.s.) 1164, 94 N.E. 840; Lane v. San Diego Elec. Ry. Co., 208 Cal. 29, 280 P. 109; 29 C.J. 547; 15 Cyc. 662, 663, and note 50, citing large number of cases; Rockridge Place Co. v. City of Oakland, 61 Cal.App. 791, 216 P. 64; Spencer v. Metropolitan Street Ry. Co., 120 Mo. 154, 22 L.R.A. 668, 23 S.W. 126; Butters v. City of Oakland, 53 Cal.App. 294, 200 P. 354.) A leasehold is sufficient to justify the recovery of damages in case of a change of a grade which interferes with right of access to property.
Taking of or injury to land without condemnation proceedings, even with acquiescence or consent of owners, entitles the owner to damages. Hargett v. Franklin Co., 212 Ala. 425, 103 So. 40; Gehlert v. City of Union (Mo.App.) 244 S.W. 97; Thornton v. Sheffield B. R. Co., 84 Ala. 109, 4 So. 197, 5 Am. St. Rep. 337; Geohegan v. Union El. R. Co., 266 Ill. 482, 107 N.E. 786, Ann. Cas. 1916B, 762; Barker v. Taunton, 119 Mass. 392; McLure v. Alabama Mid. R. Co., 130 Ala. 436, 30 So. 440; Patterson v. Atlantic C. R. Co., 204 Ala. 453, 86 So. 20; Rockridge Place Co. v. Oakland, 61 Cal.App. 791, 216 P. 64; Hobbs v. Shamokin Borough, 66 Pa. Super. 22, 26; Penn Mut. Ins. Co. v. Heiss, 141 Ill. 35, 31 N.E. 138, 33 Am. St. Rep. 273; Evansville R. Co. v. Charlton, 6 Ind. App. 56, 33 N.E. 129; Turner v. Stanton, 42 Mich. 506, 4 N.W. 204. Plea 4 fails to aver or show with certainty that plaintiffs demanded the construction of a viaduct the size and shape of the one constructed. New Decatur v. Scharfenberg, 147 Ala. 367, 41 So. 1025, 119 Am. St. Rep. 81. It was subject to demurrer as a plea on the part of the railroad.
That a municipality is liable for such damages is well settled. Bigelow v. Ballerino, 111 Cal. 559, 44 P. 307, 309; Elliott v. County of Los Angeles, 183 Cal. 472, 191 P. 899; Duncan v. Ramish, 142 Cal. 686, 76 P. 661, 664; Rockridge Place Co. v. City of Oakland, 61 Cal.App. 791, 216 P. 64, 65. Appellant’s cause of action is not barred nor is its claim for damages waived because of the failure to "make objection" as required by section 3 of the improvement act in question.
It is true that there is nothing said about consequential damages, or what shall be considered in determining the reasonable price to be paid by the Canal Company to the land owner by way of credits, and for that very reason the court must look to the authorities to ascertain what is included within such language, and this we have fully set forth in our previous opinion herein. Since the writing of our first opinion herein the appellate court of the first district, in the case of Rockridge Place Co. v. City of Oakland, post, p. 791 [ 216 P. 64], opinion filed April 27, 1923, has thoroughly considered the question of waiver or estoppel when applied to one's constitutional right to compensation when property is taken for a public use. It is there held that it is no bar to a claim for damages that the petitioner was one of the original petitioners for the improvement; that a waiver is not to be implied from the fact that the petitioner asked the improvement.