Wappenstein v. City of Aberdeen

Per Curiam. This is an appeal from a judgment awarding the respondents damages caused their property by reason of a change in the grade of the street fronting thereon, made under the authority of the appellant city. The assignments of error raise but one question, namely, does the complaint state facts sufficient to constitute a cause, of action. It is said that the complaint fails to state a cause of action because it fails to allege that the property had been improved with reference to the established'grade. But if it be the rule that a municipality may make as many [190] changes in the grade of a street as it pleases without subjecting itself to damages at the suit of property owners owning property fronting thereon, so long as the property has not been improved with reference to an established grade, and that a complaint asking for damages which fails to allege improvement of the property with reference to the established grade is defective, we think the appellant is estopped from urging the question on this appeal. The objection is raised for the first time in this court, and, as the defect is one that could have been cured by amendment, it was waived by answering over’ and going to trial on the merits. The judgment is affirmed.