rendered wholly worthless for uses to which it had been previously devoted, if not worthless for any purpose. Much would depend, of course, upon the character of the structure. If such a structure was erected without legislative authority, it would seem that the rule of City of Pontiac v. Carter, 32 Mich. 164, would not be controlling of the right of abutting owners to damages. Schneider v. City of Detroit, 72 Mich. 240 (2 L. R. A. 54); Phelps v. City. of Detroit, 120 Mich. 447. See Ranson v. City of Sault Ste. Marie, 143 Mich. 661 (15 L. R. A. [N. S.] 49); Vanderlip v. City of Grand Rapids, 73 Mich. 522 (3 L. R. A. 247). Considering all of the provisions of the statute together, we conclude that it does not permit an award for any damages resulting from the elevation of the tracks. Compensation must be given only for damages to property abutting upon that portion of the street the grade of which is to be changed, and for such damages only as result from-are caused by-such change of grade. Those interested, as owners or otherwise, in such abutting property are the persons making up the class entitled, upon proper showing, to compensation. These views were not adopted by the recorder.

Abutting property, none of which is taken, is not damaged, within the meaning of this statute, which is worth no less after the improvement is made than it was worth before it was made.

"If the fair market value of the property is as much immediately after the construction of the improvement as it was before the improvement was made, no damage has been sustained, and no recovery can be had." Springer v. City of Chicago, 135 Ill. 552 (12 L. R. A. 609, 615).

"The instruction refused and those given are based upon the theory that the cost of putting the property in as good condition as it was before the change of grade, less resulting benefits, is the measure of damages. Such, we think, is not the best and plainest statement of the true measure of recovery. The right to recover is derived from the statute alone (Code, § 469), and is not based upon alleged wrong, as in the cases cited by the appellant.

166 MICH.-8.

The evident purpose of the statute is to make the property owner whole, and no more. The difference in the value of his property as it was just before the change of grade, and as it was just after, as affected by the change, is the exact amount to which he has been damaged. If, because of benefits resulting to the property from the change, it is rendered as valuable, or more so, than before, there is no damage; but, if less valuable, there is, to the extent of the difference. Resulting benefits are considered in these cases. McCash v. City of Burlington, 72 Iowa, 26. It is true that the reasonable cost of putting the property in the same condition in which it was before the change, less resulting benefits, will lead to the same result as the rule we have stated; but there are several reasons why that is not the plainest and best statement of the measure of damages. It does not plainly and directly present to the minds of a jury the ultimate fact to be arrived at, and generally, if not uniformly, the property has not or cannot be put in the exact condition that it was before the change; as, in this case, a sum is expended in refitting the property to the new grade, and in doing so it has new material and new walls instead of the old. It is not refitted to be the same as before, and the jury must go through confusing investigations of the value of the new material and betterments over the old. Evidence as to the reasonable cost of putting the property in the same condition that it was in before the change is admissible, and proper to be considered, as it is one means of arriving at the difference in value as caused by the change. Another means is the opinion of competent witnesses as to the value of the property before and after. The ultimate fact to be arrived at is the difference in the value of the property as caused by the change of grade. This should be given to the jury as the measure of damages. This measure is alike applicable whether the property has been refitted to the new grade or not. See Meyer v. City of Burlington, 52 Iowa, 560." Stewart v. City of Council Bluffs, 84 Iowa, 61.

We approve of the rule thus stated by the supreme court of Iowa. See, also, Chase v. City of Portland, 86 Me. 367; Com. v. Sessions of Norfolk, 5 Mass. 435; Buell v. County of Worcester, 119 Mass. 372; Chambers v. South Chester, 140 Pa. 510; Philadelphia Ball

Club v. City of Philadelphia, 192 Pa. 632 (46 L. R. A. 724); Parker v. City of Atchison, 46 Kan. 14; Swift & Co. v. City of Newport News, 105 Va. 108 (3 L. R. A. [N. S.] 404); City of Covington v. Taffee, 24 Ky. Law Rep. 373; City Council of Augusta v. Schrameck, 96 Ga. 426; City Council of Montgomery v. Maddox, 89 Ala. 181; 28 Cyc. p. 1069 et seq. There are portions of the charge to the jury which seem to be in accord with this rule. We cannot say that it was the rule announced in view of the fact that the recorder was of the opinion, and so stated, that, because the statute contained a provision for an assessment for special benefits upon property in the vicinity of the improvement, the jury could take no account of any peculiar or particular private benefits resulting from the improvement. If, after the street is graded, the abutting property is worth as much, in the condition in which the new grade leaves it, as it was worth before the change was made, it is not damaged by the change of grade. The fact that, if it is damaged, an assessment to pay the damages may be, later on, made upon property in the neighborhood, in accordance with some notion of special benefits, does not seem to be a reason for refusing to apply the rule announced. Nothing is to be considered but the effect of the change-the structural change-in the street, upon the particular property. This rule applies as well to the interests of tenants as to those of owners. We do not consider, although we are asked to do so, whether the agreement entered into by the city, herein referred to, precludes a special assessment upon property found to have been specially benefited by the improvement. The question is not, necessarily, involved.

What is just compensation within the meaning of the statute? It is not easy, perhaps is impossible, to lay down any but broad, general rules. Section 4231 provides for a compromise by the municipality with "any person having an interest in any lands abutting on that portion of the street or highway within the city of which the grade

is to be changed according to the said agreement, and which may be damaged by the proposed change of grade." If the separation of grades is ordered by the board of railroad and street crossings, or takes place pursuant to an agreement, and no such compromise is made, in either case the petition which is required to be filed (section 4239) must contain a description of "the property abutting on that part of said street or highway of which the grade is to be changed, also a statement of the manner in which said property * * will be affected by said. change," and shall further state that it is made and filed

"for the purpose * * * and for making just compen

* * ""

sation to all persons sustaining damage thereby." The jury is impaneled (section 4241) "to ascertain and determine the just compensation to be made therefor" to "persons interested in the abutting property made parties respondent to said petition. * The jury (section 4243) is sworn to "impartially ascertain and determine the compensation to be made to the parties respondent and unknown parties in interest named in said petition," and in the verdict (section 4244) shall ascertain and determine the amount of damages to such property as may be damaged thereby, and award to the parties interested compensation for such damages. These provisions are broad enough to secure to persons interested in the abutting property indemnity for such damages to the property, and to their respective interests therein, as result from the change of the grade of the street. It is obvious that not all injuries resulting from the making of the improvement are within this rule. Inconvenience caused to the general public and to the claimant, temporarily or permanently, on account of rendering the street less convenient for use; injury and inconvenience resulting from closing the street, in whole or in part, to public travel during the progress of the work-do not, except in degree, affect those within the district differently than it does those outside of it. They do not support a claim for damages. The fact that the legislature has confined the inquiry to the property

within the limited territory affected by the change of the grade of the street, and to those damages resulting from such change of the grade, is a sufficient reason for concluding that the provisions above referred to are not broad enough to secure damages to a business, as such, carried on upon the land, whether by the owner of the land or by

a tenant.

In the contemplation of the statute compensation is to be awarded, in gross, before the improvement is begun, and to be apportioned among those interested in the land. It would be mere speculation to attempt to determine the loss of profits of a business to be continued on the premises, to be occasioned by a change of grade to be made. The fact that in the present case the improvement was completed before this proceeding was instituted, and the fact, if it is a fact, that certain profits claimed to have been lost can now be certainly proven, do not aid us in arriving at the statute measure of compensation. As has been said, the statute contemplates an award before the improvement is made. Where the right to use premises attaches to the interest of the claimant in such premises, and it is apparent that such use will be wholly and permanently lost, or will be abridged, as a result of the effect of the change of grade upon the premises, the fixing of just compensation may involve some inquiry into the nature of the use and the effect of its loss or abridgment. We have heretofore held (City of Detroit v. C. H. Little Co., 146 Mich. 373) that just compensation to a tenant evicted by the change of grade is not necessarily the value of his term less the rent reserved. That rule might, and it might not, afford indemnity. In a majority of cases it undoubtedly would afford just compensation, and any mere abridgment of the value of the tenant's interest in the property will usually be recompensed in the application of the rule. We do not intimate that the nature of the title upon which interest is grounded, the duration of a tenant's term, and the right of the landlord, by notice or by statutory proceedings, to determine