railway company to enter and construct its road on his land, he waives his former remedy by action for trespass, and is relegated to his remedy under the statute referred to. But in Blesch v. Chicago & N. W. R. Co., 43 Wis. 184, where the road was built on land without the consent of the owner, and he erected (as it was held he might) to sue in trespass instead of proceeding under the statute to have compensation assessed for a permanent taking of the property, the court very clearly makes the distinction between the two proceedings, holding that the acts of the railway company constituted a continuing trespass.

Adams Case

7. We are asked to reconsider and overrule our decision in the Adams Case. It is urged that it is against the great weight of authority, that a contrary view had been acted on so long in this state as to have become a affirmed. practical rule of property, and that the rule laid down by us is resulting in serious consequences by way of unsettling titles to much railway property, and stirring up much litigation over stale claims for damages. It is also suggested that our decision was based largely upon the authority of the Elevated Railway Cases in New York, the doctrine of which has since been held by the same court in Forbes v. Rome, W. & O. R. Co., 121 N. Y. 505, 43 Am, & Eng. R. Cas. 137, to be inapplicable to "surface roads." The decision in the Adams Case was the deliberate judgment of this court pronounced after exhaustive arguments by able counsel and the most thorough and careful consideration of the case of which we were capable, and we have not since seen any reason for changing our opinion as then deliberately announced. The doctrine of that case must therefore be considered as the settled law of this state upon all questions involved therein, or which logically come within the principles there determined. Although its doctrine may be a step in advance of the general current of authorities, yet we believe it to be sound in principle, and eminently equitable in practice. The only serious objection to it (and we recognize its force) is the difficulty in applying the rule adopted by us as to the measure of damages. The temporary evils resulting from the adoption of the rule by way of inciting litigation or unsettling titles are, we think, much overestimated, and will soon pass away. cited the Elevated Railway Cases because of what we deemed the inherent force and soundness of the reasoning of the opinions of the court, although we were then, and still are, unable to see how it was consistent with the doctrine of that court, announced in other cases, that the legislature had the right to authorize the construction of a railroad on a street without requiring the railway company to pay compensation to

We

the owners of abutting lands, provided they did not own the fee in the street. For if the abutting owner, independently of the ownership of the fee in the street, has an easement in the street in front of his lot to the full width of it for,the purposes of access, light, and air, which is property, and cannot be taken from him without compensation, it is difficult for us to see what difference it makes whether the easement is taken away or its enjoyment interfered with by a railroad constructed and operated on the surface of the ground, or at an elevation above it. As the Forbes Case is but the adherence of the court to its former decisions as to "surface " roads, it does not render the reasoning in the Elevated Railway Cases any less persuasive to our minds than it was when we considered them in connection with the Adams Case.

Vacation of street-Evi

dence.

8. Upon the trial the defendant offered to prove that it was, and for more than eight years had been, the owner of the two lots immediately opposite plaintiff's lots, and abutting on the east upon the same part of Fourth street; also the provisions of the charter of the city of Mankato (Sp. Laws 1868, chap. 27, subc. 6, § í) in regard to the vacation of streets; also an ordinance of the city passed in July, 1868, vacating certain streets, among others so much of Fourth street as lies east of the center line thereof, and between Plum and Elm streets, which includes that part in front of plaintiff's premises, and, in connection. with this ordinance, offered to prove that it was duly submitted to and ratified by a vote of the legal voters of the city of Mankato at the time of its enactment. Each and every part of this evidence was excluded by the court. We have examined the record with care to ascertain, if possible, upon what ground so learned a court excluded evidence so clearly admissible, as it seems to us. It may be that some good reason was apparent on the trial to the learned judge; but, if so, we have failed to discover it, and counsel for plaintiff have not pointed it out. The materiality and relevancy of the facts offered to be proved are very apparent; for, if the east half of Fourth street was legally vacated, it was no longer a public highway, and neither the public nor plaintiff any longer had any easements in it. The defendant, as the owner of the lots abutting on it, thereafter held the fee of that part of the former street in front of its premises to the center line, unincumbered by any such easements, and had the same right to use and occupy it as any part of its lots outside the former street line. For this error, if no other, a new trial must be granted. Upon the argument, counsel discussed the question whether it was necessary, under the city charter, that an ordinance vacating a street should be submitted to and ap

proved by the legal voters of the city. As a new trial must be had, in which this question may again arise, it should be considered at this time. The charter gives to the city council the care, supervision, and control of all streets within the city, and power to lay out, open, alter, and vacate public squares, highways, streets, etc., and widen and straighten the same: "provided that no right, title, or interest in or to any street, levee, park, public ground, or square in said city shall be granted, conveyed, released, or discharged by the common council of said city, unless the same shall be submitted to a vote of the legal voters of said city, and receive a majority of said voters present and voting," etc. An ordinance vacating a street, and thus giving up and releasing the entire interest of the public in it, is certainly as much within the reason of this proviso as one surrendering or releasing only a part of such interest. Such an ordinance would clearly be within the mischief intended to be guarded against. As the greater includes the less, we think such an ordinance must be submitted to and approved by the legal voters.

Elements of

damages.

9. Upon the trial, the judge, in accordance with the rule laid down in the Adams Case, both in the admission of evidence and his instructions to the jury, held that plaintiff's recovery should be limited to the damages caused by maintaining and operating the railroad in front of his lots, and could not include any that might have accrued from maintaining or operating it on other parts of the street. He did not, however, limit the recovery to such damages as resulted from interference with access to the premises, or with the admission and circulation of air and light, but allowed to be taken into account all damages to the premises resulting generally from the maintenance and operation of the road in the street in front of them, as for example, noise and jarring from passing trains, which discommoded and annoyed the occupants of the premises, and thus rendered their use less valuable. This is also assigned as error. In the Lahr Case, 104 N. Y. 268, the majority of the court did not limit the recovery, as this court did in the Adams Case, to damages caused by operating the road on that part of the street immediately in front of the premises, thereby avoiding the practical difficulty, under our rule, of distinguishing between damages resulting from the operation of the road in front of the premises and those resulting from its operation on either side of them. They held that the road and its intended use could not be dissected and separated, but must be considered in its entirety in considering its effect upon the property of the abutter; that, however the damage may be inflicted, provided it be effected by an unlawful use of the street,

46 A. & E. R. Cas.-4

it constitutes a trespass, rendering the wrongdoer liable for the consequences of his acts. And while they predicated, as we did, the right of the abutter to recover upon the propo. sition that he had an easement in the street to its full width for ingress and egress to and from his premises, and also for the free passage and circulation of light and air through and over such street, for the benefit of property situated thereon, yet they did not limit the right of recovery to damages resulting from interference with access, light, and air, but extended it to any damages resulting from the unlawful maintenance and operation of the road in the street. At least, we so understand their language. The minority of the court were of opinion that, according to the fair import of the grounds upon which the Story Case, 90 N. Y. 122, 7 Am. & Eng. R. Cas. 596, was decided, the abutting owners were only entitled to damages for the construction and operation of the railway in front of their premises, resulting from the taking or destruction of their street easements of light, air, and access; and that they could not recover for anything done by the railway in the street except as it deprives them of the easements mentioned. In the Adams Case we adopted the limitation as to place, viz., " in front of the premises," but the question as to the elements of damage to be taken into account, and whether to be limited to such only as arise from interference with the easements of access, light, and air, was not considered or passed upon. The whole theory, however, upon which the opinion proceeds leads logically and necessarily, as seems to us, to the conclusion that a recovery can only be had for damages resulting from the destruction of or interference with the easements of access, light, and air. The very groundwork upon which the right of recovery is based is that the abutting owner has, in the opposite half of the street, not the fee, but an easement for access, light, and air for the benefit of his premises. These are all the rights in the nature of private property which he has in that part of the street and consequently they are the only property rights which the defendant has trespassed upon; and, if so, it would seem logically to follow that this is all for which they are liable to respond to him in damages. We are not disposed to extend the scope of the decision in the Adams' Case beyond its fair import, and we think that, both upon principle and considerations of policy, a recovery in such cases should be limited to damages resulting to the premises from interference with access, light, and air. It follows that some of the elements of damage which the trial court permitted the jury to consider, such as the jarring of the premises, and noises made by passing trains, causing annoyance and discomfort to the

occupants, ought to have been excluded. Order reversed. VANDERBURGH, J.-I concur in the result.

Right of Abutting Owners to Compensation for Construction of Steam Railroads in Streets.-See Forbes v. Rome, W. & O. R. Co. (N. Y.), 43 Am. & Eng. R. Cas. 137; Jackson v. Chicago, S. F. & C. R. Co. (C. C.), 43 Id. 145; Trustees of First Cong. Church v. Milwaukee & L. W. R. Co. (Wis.), 43 Id. 182; Ottlenot v. New York (N. Y.), 43 Id. 129; McQuaid v. Portland & V. R. Co. (Or.), 40 Id. 308, note 320.

Action by Abutter for Damages-Extent to which Street must be Obstructed. -To entitle an abutting lotowner to recover damages for locating a line of railroad, under the authority of the city council, in one of the streets of a city, there must be a practical obstruction of the street in front of his premises, so as to virtually deprive him of ingress to and egress from his property. Kansas, N. & D. R. Co. v. Mahler, (Kansas, March 7, 1891), 26 Pac. Rep. 23.

Same-Impairing Access to Premises-Sufficiency of Complaint to Sustain Private Action.-In Lakkie v. Chicago, St. P., M. & O. R. Co., 44 Minn. 438, it was held that the complaint alleging the obstruction of public streets by the construction of a railroad therein was not sufficient to show that the plaintiff's access to his premises (not adjacent to such obstruction), was thereby so impaired as to entitle him to maintain a private action therefor. Nuisance Caused by Construction of Embankment in Highway-Damages for Depreciation of Property.-In Rosenthal v. Taylor, B. & H. R. Co., (Texas Sup. Ct., Jan. 23, 1891), 15 S. W. Rep. 268, it was held that where a railroad company has constructed an embankment in a street in front of plaintiff's house so as to cause an accumulation of surface water which remains through a period of stagnation, and where the company has refused to drain the water off, it is not error to treat the nuisance as a permanent one, and to give damages for the depreciation of the property. The court said: "As to the measure of damages in such cases, the authorities are not altogether in accord. Since in most cases a nuisance may be abated by the injured party, and since the wrongdoers may voluntarily remedy the wrong by removing it, the general rule seems to be that ordinarily the party damaged must bring his action for such damages as have accrued up to the institution of the suit, and cannot recover for any prospective injury. That rule has been adopted in a case very similar to this. Hopkins v. Western Pac. R. Co., 50 Cal. 190. But there are other cases which announce a contrary doctrine, and we think with the better reason. Illinois Cent. R. Co. v. Grabill, 50 Ill. 241; Kemper v. Louisville, 14 Bush (Ky.), 87; Seely v. Alden, 61 Pa. St. 302; Troy v. Cheshire R. Co., 23 N. H. 102; Finley v. Hershey, 41 Iowa, 389; Fowle v. New Haven & N. Co., 112 Mass. 338. In the case last cited the court say: The case at bar is not to be treated in this respect as an action for an abatable nuisance. More accurately, it is an action against the defendant for the construction of a public work under its charter in such a manner as to cause unnecessary damage by want of reasonable care and skill in its construction. For such an injury the remedy is at common law. If it results from a cause which is either permanent in its character or which is treated as permanent by the parties, it is proper that the entire damage should be assessed with reference to the past and probable future injury.' The language quoted is peculiarly applicable to this case. The controlling rule in actions for injuries resulting from similar nuisances would seem to be to adopt in each case that increase of damages which is calculated to ascertain in the most certain and satisfactory manner the compensation to which the plaintiff is entitled. When the injury is liable to occur only at long intervals, or when