cases cited in 2 Dill. Mun. Corp. § 985, and note, and sections 1038 and 1052, and notes. The city, by overflowing the land of another as set forth in the first count, would be guilty of a nuisance which it can no more commit than a private individual. Weet v. Brockport, supra, per SELDEN, J. But the question arose on the second count and was directly presented in the request quoted above. The damages so caused are consequential in their nature. Discussing the city's right, the court observed as follows:

"It has, no doubt, long been the well-settled rule in this state, as recog nized and enforced by our courts, that municipal corporations are not liable for consequential damages caused by the raising and lowering of the grade of streets; and the decisions have rested upon the common-law doctrine that the proper construction and improvement of streets are supposed to be made for the public good, and that private injury or inconvenience that may arise to adjacent lot-holders, as a consequence of such raising or lowering the grade of the street, must be borne by the proprietor without compensation, because his right to such must yield to the promotion and advancement of what is the public good of the city. See Markham v. City of Atlanta, 23 Ga. 402; Mayor, etc., of Rome v. Omberg, 28 Ga. 46; Roll v. City Council of Augusta, 34 Ga. 326; Mitchell v. Mayor, etc., of Rome, 49 Ga. 19.

"But it is now claimed, and so the court instructed the jury, that this rule had been changed by a provision of the constitution of 1877, contained in the last clause of paragraph 1, section 3, of the bill of rights, which reads as follows: Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.' It is not denied by counsel for plaintiff in error that, under this provision of the constitution any direct and immediate damage done to private property, such as its invasion or spoliation thereof, the city would be liable for damages, and be compelled to make just compensation, as by the constitution provided; but he insists that it was not the intent or purpose of the framers of that instrument to vary or change the rule, so well established and long recognized by the courts, that, in improving the streets by raising or lowering the grade thereof, the city would not be liable to respond to lot-owners bounding thereon for any consequen tial damages resulting therefrom. The duty devolves upon this court, then, to construe, for the first time, this clause in the bill of rights. In previous constitutions the words varied from the present: Private property shall not be taken for public use without just compensation,' were the words ordina rily employed. But, under the constitution of 1877, further protection is sought to be given to the property of the citizen, and now, it shall not be taken or damaged for public use without just compensation.' The article does not define whether the damage shall be immediate and direct, or consequential. Any damage to property for public use must receive its compen sation. It may be, and will no doubt often occur, that the consequential damage may impose a more serious loss upon the owner than a temporary spoliation or invasion of the property." 67 Ga. 388.

This decision is followed and approved by the same court in Moore v. City of Atlanta, 1 Denver Law J. No. 10, p. 78.

These views of the Georgia supreme court are, in the main, true, and sustained by the following cases, decided by the highest courts of states having a constitutional guaranty similar to that of the consti tution of this state. City of Elgin v. Eaton, 83 Ill. 535; Rigney v. City of Chicago, 102 Ill. 64; Johnson v. Parkersbury, 16 W. Va. 402; City of Denver v. Bayer, 2 PAC. REP. 6; Williams v. Gulf, C. & S. F.

Ry. 1 Denver Law J. No. 34, p. 267; Graves v. Same, 1 Tex. Law J. 8; Gottschalk v. Chicago, B. & Q. R. Co. 14 Neb. 550; S. C. 16 N. W. Rep. 475. In some of the cases just above cited, the damages for which compensation was sought by action were consequential; and it was held that they were recoverable under the constitutional guaranty against damage of private property in the exercise of public use. In City of Elgin v. Eaton the damages were consequent on grading the street to the grade fixed by law. Johnson v. Parkersbury, City of Atlanta v. Green, and Moore v. City of Atlanta, are cases of a change from a grade formerly made. In such cases, when the work is done with the usual care and skill, there could be no recovery at common law; the injury inflicted is without damage, and the damage without injury, curtly expressed in the maxim “damnum absque injuria." The right of the owner of the property, who has sustained such damage, must yield to the promotion and advancement of the public good. He has become the owner of the property in subordination to the right of the municipality, conferred by statute, to change the grade of the streets. See City of Atlanta v. Green and Moore v. City of Atlanta, supra. There can, therefore, be no recovery for the injury so sustained. But in the cases just above referred to, the damage was held to be within the constitutional provision as to property damaged, whether done with care and skill or not.

We are of opinion that the right assured to the owner by this provision of the constitution is not restricted to the case where he is en

titled to recover as for a tort at common law. If he is consequently damaged by the work done, whether it is done carefully and with skill or not, he is still entitled to compensation for such damage under this provision. This provision was intended to assure compensation to the owner as well where the damage is directly inflicted, or inflicted by want of care and skill, as where the damages are consequential, and for which damages he had no right of recovery at the common law. That no action for such consequential damage can be maintained by the common law, see Smith v. Washington, 20 How. 135, and O'Connor v. Pittsburgh, 18 Pa. St. 187; 2 Dill. Mun. Corp. § 990, and cases cited in notes. Ohio seems to be the only state where the contrary is held. See remarks of BRONSON, J., in Radcliff's Ex'rs v. Mayor, etc., of Brooklyn, and Smith v. Washington, supra; Crawford v. Delaware, 7 Ohio St. 459, in which the Ohio supreme court admits that the rule held by it is in conflict with the decisions both in England and America, and known to be so when decided. The rule above stated is established by such a preponderance of authority that we forbear to dwell further on the point. The cases will be found under the above references, and we will only add that they establish the rule above declared to be law.

We cannot think that the convention inserting in the constitution. of this state the word "damaged" in the connection in which it is found, and the people in ratifying, the work of the convention, in

tended to limit the effect of this word to cases where the party injured already had a remedy to recover compensation. They engaged in no such empty and vain work. It was intended to give a remedy as well where one existed before as where it did not; to superadd to the guaranty found in the former constitution of this state, and in nearly all of the other states, a guaranty against damage where none previously existed. The provision includes damage to private property, including land, and whatever is attached to it. If land and buildings on it, or either, are damaged, this provision requires it to be compensated. And if compensation has not been had in condemning the land for the street under the statute for such condemnation, (see sections 237, 1263, Code Civil Proc. pt. 3, tit. 8,) it can be recovered in an action. We do not intend to say nor do we think it extends to such damage as the owner of the property injured sustains in common with the other abutters on the street or the general public, but only to that special injury which he receives over and above such common injury. See remarks of BRONSON, J., speaking for the court in Radcliff's Ex'rs v. Mayor, etc., of Brooklyn, supra, 206, 207; observations of Lord WESTBURY in Ricket v. Metropolitan Ry. Co. L. R. 2 Eng. & Ir. App. Cas. 203. Here the damage is to the houses affixed to the land. This is special damage to the plaintiffs, for which they are entitled to recover, though they may be of the class usually styled consequential.

By reason of the foregoing, we are satisfied and hold that the complaint states a cause of action, and as the facts of such cause of action are affirmed to exist by the verdict the plaintiffs are entitled to judgment on this point. We are of opinion that the claim was properly presented to the board of supervisors. The law spoken of in the eightyfourth section of the consolidation act, to which reference is to be made, is a statute; for it is to be referred to by its title, date, and section. The claim here is not made under a statute. There is nothing in the point made on behalf of the defendant that it must be regarded as a county, and therefore is not suable. It nowhere appears in the case that the plaintiffs have received any compensation for the injury sustained by them.

We find no error in the record; and the judgment is affirmed.

We concur: SHARPSTEIN, J.; MYRICK, J.

(66 Cal. 487)

Estate of KIDDER, Deceased. (No. 8,269.)

Filed March 12, 1885.

1. FRAUDULENTLY DESTROYED WILL-PETITION FOR PROBATE.

Where a will is alleged to have been fraudulently destroyed, the petition for probate of such will must state the facts and circumstances showing such fraud. 2. WILL-DESTRUCTION-EVIDENCE OF FRAUD.

Evidence showing that at the time of the destruction of a will the testatrix was ill in bed, and that her nurse, her sole attendant, handed her the will, which then either fell accidentally or was thrown by the testatrix into the fire,

and was consumed, the nurse, though she saw it burning, making no effort to save it, does not amount to proof of a fraudulent destruction of the will by the

nurse.

3. LOST WILL--EVIDENCE OF CONTENTS.

On application to have a will admitted to probate, under the California statute, (Code Civil Proc. § 1339,) the provisions of the will must be clearly and distinctly proven by at least two credible witnesses.

In bank. Appeal from the superior court of Santa Clara county. Burt & Pfister, for appellant.

Houghton & Reynolds and Moore, Laine & Johnston, for respond

ents.

MORRISON, C. J. This is an appeal from an order admitting to probate a destroyed will. The petition alleged the execution of the will, and that it was never revoked by the deceased; that on a day and at a place named, and without the knowledge or consent of said deceased, the will “was fraudulently burned and destroyed by and through the neglect and inattention of one Laura Stevens, who was then and there the nurse and sole attendant upon said decedent; and that said Mary Kidder died without any information or knowledge of the facts of said burning and destruction thereof." The petition was demurred to, on the ground that the facts constituting a fraudulent destruction are not stated; that it does not appear by whom the alleged will was destroyed, nor what acts contributed to its destruction, nor how the negligence or inattention of the attendant brought about the destruction. The demurrer was overruled.

This proceeding was under section 1339, Code Civil Proc., which provides that "no will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the life-time of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses." The ground relied upon by petitioner in this case was that the will had been fraudulently destroyed in the life-time of the testatrix, Mary Kidder. The averment in that regard in the petition is "that said last will and testament was fraudulently burned and destroyed by and through the neglect and inattention of one Laura Stevens, who was then and there the nurse and sole attendant upon said decedent;" and the finding of the court upon the point is "that when said will was brought to her (the testatrix) she partially withdrew it from the envelope, and then returned it there, and then allowed it to fall from her hand into the fire, when it was wholly consumed. That said destruction of said will was wholly unintentional on the part of said Mary Kidder, and that the wife of Ira Stevens (the nurse) was present at the time said will was burned, and saw it fall into the fire, but did not make any effort to preserve it, and did not inform said Mary Kidder that it had fallen into the fire, or was burned or destroyed."

* * *

It will be borne in mind that the petition was for the probate of a will alleged to have been fraudulently destroyed during the life-time

of the testatrix; and the first inquiry is, do the allegations in the petition show a fraudulent destruction of the will? It is true, that it is charged that the will was fraudulently burned and destroyed "by and through the neglect and inattention of one Laura Stevens, who was then and there the nurse and attendant upon the decedent." What acts of neglect and inattention the nurse was guilty of are not stated, and the court is left to conjecture. It is well settled that when fraud is complained of as the ground of relief, the facts and circumstances constituting the fraud must be stated. It has been so held, and such is unquestionably the well-settled doctrine of this court. Goodwin v. Goodwin, 59 Cal. 562, and authorities there cited.

The testimony of Laura Stevens, the only witness who was present, and the sole witness who testified to the destruction of the will, was substantially as follows:

*

*

"I handed the will to her; she lay it in her hands like that (showing) and kind of sank, and I just walked around the other side of her and saw it was in the fire. While I was walking it was in the fire. * * * She made a motion of her hand down on one side, like she was half asleep, and the paper went into the fire and was consumed there. * * * I couldn't tell whether it was a throwing or flirting around, but it went into the fire. * I was going around like, and with that motion the will went into the fire. I couldn't tell why I didn't get it out of the fire; I didn't know anything about it really; didn't know what to do, nor really didn't think about it.” Does the evidence show or does the court find facts amounting to fraud or constituting a fraudulent destruction of the will? preme court of New York, in a case similar to this, says:

The su

"The question of the fraudulent destruction of a will, under this section, must be one of fact. Fraud is never to be presumed. This is a fundamental rule. It is never to be imputed or inferred, but must be proved by satisfactory evidence." Timon v. Claffy, 45 Barb. 446.

The most that can be said of the conduct of Mrs. Stevens is that she neglected to take the will from the fire; but to impute to her fraudulent conduct would be more than the evidence justifies. We do not think that the evidence shows, or that the court finds, a fraudulent destruction of the will, under section 1339 of the Code of Civil Procedure.

From what has been said, it is apparent that the orders appealed from must be reversed; but there are one or two other points in the case to be considered. On an application to have a lost will admitted to probate, the provisions of such will must be clearly and distinctly proved by at least two credible witnesses. Such is the language of section 1339 of the Code already referred to; and it is claimed by the contestants that such was not done in this case.

The first witness examined as to the contents of the alleged destroyed will was J. E. Brown, who testified as follows:

"The first thing was that she wanted Jessie Kidder to have $1,500. I wrote it down. The next she wanted to give one of her sons $5. I don't recollect his name. It was not Ira. I wrote down that bequest. She wanted one of her daughters, living in Oregon or Sacramento,-I forget which,--to