The opinion
Per Napton, Judge,
concurring.
It may be considered as settled in this State, as it has previously been in nearly all the other States, that a municipal corporation is not liable for damages indirectly resulting to proprietors of lots within the municipality by the grading of the street or by changes in the grade authorized by the municipality. No private property is in such cases taken for public use, within the meaning of our State constitution, whose language on this topic is mostly copied from the Magna Charta of England. Nor is it probable that any injustice is done, since proprietors of lots have an eye, in their purchases, to this liability of their lots being thrown below or above grade.
It is further determined, that where the charter of the municipality so allows, a railroad may be constructed on a street by permission of the municipal authorities, and neither the municipal corporation nor the railroad company will be responsible for the inconvenience and damage resulting from such construction. (Porter vs. N. Mo. R. R. Co., 33 Mo. 128 .) But these principles apply only to a railroad constructed on the grade of the street, where the only obstruction is the passage of trains, and not where embankments have been made above the grade, or where the street is used for side tracks or other structures for the convenience of the road. For those purposes the railroad company must procure sufficient ground, not altogether dedicated to uses entirely inconsistent with the purposes they propose to apply it. (Lackland vs. N. Mo. R. R. Co., 31 Mo. 180 .)
These general principles seem to be agreed on. The difficulty in this case is in reconciling these general established principles to the instructions given. It is not to be expected that ins true *159 tions given in the hurry of a nisi prius trial will not occasionally be subject to criticism. It is only proper for a revising court to see that in the main they are not calculated to mislead.
The instructions in this case seem designed to express the principles applicable to the facts proved on the trial, and although they seem to me somewhat ambiguous, yet the verdict of the jury indicates that they were not misled. I therefore concur in affirming the judgment.