the nuisance is likely to be removed by any agency, the damages which have accrued only up to the time of the action will be allowed; but if the nuisance is permanent, and the injury constantly and regularly recurs, then the whole damage may be recovered at once. In a case like this the resulting depreciation in the value of the property is the safest measure of compensation. Here it may be inferred from the evidence that the injury recurs upon each considerable rainfall, and continues during a stage of offensive stagnation until the water evaporates. The defendant seems to have treated the work as permanent, since they have failed, upon application, to make a culvert for the passage of the water; and we are of opinion the depreciation in the value of plaintiff's property is the most certain measure of his damages for the injury." Estoppel of Party Contracting to Obtain Right of Way Through Street to Maintain Action for Damages to His Abutting Property.-The plaintiffs contracted to procure for the defendant railroad company the right of way of the company along the street of a town, that is, they were to obtain the consent of the authorities of the corporation. Held, that such contract did not admit of the construction that plaintiffs were both to procure the consent of the authorities, and to secure to the defendant immunity from the payment of damages to persons owning property abutting on streets along which the right of way should be established. Accordingly the plaintiffs were not estopped to claim damages for injury to property owned by them abutting on such street for a depreciation resulting from noise, smoke, etc., created by passing trains, and for injuries caused by the obstruction of surface water which became stagnant and offensive and constituted a nuisance. Rosenthal v. Taylor, B. & H. R. Co., (Texas Sup. Ct., Jan. 23, 1891), 15 S. W. Rep. 268. Action by Abutter Who was not in Possession when Injury Occurred-Con. structive Possession through Tenant.-In an action brought to recover damages under § 9 of article 3 of the constitution, as compensation for permanent injury to real estate by the construction of a railroad upon a street adjacent to such property, it is proper for the owner to bring an action for trespass on the case, and he may count for permanent damages, and recover the same according to the evidence, although when the injury occurred, he was not in the actual occupancy of the property, but was in constructive possession of the same through his tenant under a lease. Fox v. Baltimore & O. R. Co., (W. Va., Dec. 12, 1890), 12 S. E. Rep. 758. Same-Appeal.—In_Post v. Manhattan R. Co., (New York Čt. of App., Dec. 16, 1890), 26 N. E. Rep. 14, it was held that the objection that an action for damages to the rental value of plaintiff's real property by the erection of a street railway in front thereof cannot be maintained, for the reason that during the term for which damages are claimed, plaintiff was not in possession of the premises, but that they were in possession of tenants under him. cannot be raised for the first time on appeal. Right of Action by Abutter for Injury to Land in Ancestor's Lifetime.— Certain land descended to testator as the sole heir of intestate. Before the settlement of intestate's estate, testator died, devising the land to plaintiff, and making her residuary legatee. After the settlement of the administrator's accounts, but before the settlement of the executor's accounts, plaintiff commenced an action for damages to the land, resulting from the impairment of the appurtenant easements of light, air, and access in the street. Held, that she could not recover for damages sustained prior to testator's death, as the right of action therefor accrued to the owner of the premises on the happening of the injury, and passed as a personal asset to the administrator for the injuries during intestate's life, and to the executor for the injuries during testator's life. Griswold v. Metropolitan El. R. Co., 122 N. Y. 102. Parties to Action for Construction of Railroad in Street-Heirs of Co-tenant. -In Shepard v. Manhattan R. Co., 117 N. Y. 442, it appeared that after the construction of an elevated railroad, the maintenance of which it was sought to enjoin, a co-tenant of property abutting on the street died. Held, that the heirs of such co-tenant "had an interest in the subject of the action" within the meaning of the Code of Civil Procedure, § 446, and were necessary parties to an action to restrain the operation and maintenance of the road, and for damages; and the failure to join them would be a defect available by a demurrer. Held, also, that the administratrix of the deceased co-tenant was a proper party plaintiff, she being entitled to receive damages sustained by her intestate to his property up to the time of his death. Railroad Embankment in Highway as a Nuisance.--An embankment constructed by a railroad company with proper care, and skill, after it has complied with statutory provisions, and has obtained the right of way through the lands, is not a nuisance; but, if it is constructed along a highway, not within the corporate limits of any city or town, and which has not been declared a public road by the County Commissioner, but in which private rights or interests have been acquired by individuals, it is unlawful as to them, unless their consent is first obtained, and may be a nuisance. Evans v. Savannah & W. R. Co., 90 Ala. 54. Reservation in Plat of Part of Street for Railroad Purposes-Right and Title of Abutting Owner.--When the owner of a tract of land lays it off into lots or blocks, setting apart certain portions as streets, with a view of establishing a town, a subsequent sale and conveyance of lots abutting on the street, as shown by a map which is referred to, is a complete and irrevocable dedication of it to the use of the purchasers and the public, and the grantor cannot afterwards impose on the land an additional, inconsistent servitude; but, if lots are sold with reference to a map on which are marked lines showing a reservation of a part of the street for railroad purposes, the purchaser buys subject to this reservation, and his title as owner of the ultimate fee to the center of the street is subordinate to the reserved right. Evans v. Savannah & W. R. Co., 90 Ala. 54. Railroad on County Road-Authority of Municipal Officers of Town.Where a county road has been included within the limits of an incorporated town, and the municipal authorities of said town have assumed control of such road, they may, under their general powers conferred by statute with reference to streets, alieys, etc., authorize a railroad company to use a portion of said road for the purpose of constructing its railway along the same, in accordance with the statute which provides for such construction. Yates 2. Town of West Grafton, (W. Va., March 7, 1891), 12 S. E. Rep. 1075. WICHITA & COLORADO R. Co. v. SMITH. (Kansas Supreme Court, Jan. 10, 1891.) Railroad in Street-Right of Abutting Owners to Compensation.-An abutting lot owner cannot recover damages by reason of the location of a railroad, duly authorized by the city council, along one of the regularly laid out streets of a city, unless there has been a practical obstruction of the street in front of his premises, and he is virtually deprived of access to his property. Destruction of Ingress and Egress-Ballast of Roadbed.-The failure alone of a railroad company to properly ballast its roadbed, where sufficient space is left in the street for ordinary vehicles and teams to pass in front of abutting property, will not authorize a recovery for damages alleged to have been sustained for the destruction of one's right of ingress and egress, where there is no evidence to show the terms and conditions upon which the privilege to build such railroad was conferred by the city authorizing the same. COMMISSIONERS' decision. Reno County. Error from District Court, J. H. Richards and C. E. Benton, for plaintiff in error. GREEN, C.-This action was commenced by C. J. Smith, in the district court of Reno county, to recover damages for the alleged illegal, unlawful, and wrongful destrucCase stated. tion of his right of ingress and egress to and from his premises, upon a legally laid out street in the city of Hutchinson. The plaintiff below alleged that he was owner of lots 55 and 57, avenue G east, in Handy's addition to said city; that prior to the 16th day of September, 1886, he had erected a house upon said lots, and was at said date using and had since used the same as a residence; that the only outlet and inlet he had to said property was from said avenue; that the railway company, on or about the 16th day of September, 1886, illegally, wrongfully, and improperly obstructed said avenue by erecting its track and switches much higher than the grade, and had kept its track and switches in such a condition as to obstruct the avenue and deprive the plaintiff of the use and benefit of the same as a means of ingress to and egress from his dwelling, and had further obstructed the avenue by improperly leaving large piles of ties and other building material in front of plaintiff's residence, and permitting large numbers of cars to stand upon the said track on said avenue. The railroad company answered that it was authorized to build its railroad along said avenue by an ordinance of the city of Hutchinson, and that its line of road was constructed in conformity with the terms and conditions of such authority; that the track of the railroad company was located 50 feet from the residence of the plaintiff. 66 The jury returned a verdict for the plaintiff, for $225. With the verdict, the jury returned the following interroga tories and answers: (2) When the defendant located its road and built its track on avenue G, was the grade of said avenue established adjacent to and abutting upon the plaintiff's property in question? Answer. No. (4) State what is the approximate height of the embankment on said Avenue G in front of plaintiff's property. A. A cut of fifteen inches. * * * * * (5) Did the defendant make any ditches in said avenue G in front of plaintiff's property, or any part thereof? A. No. (7) What is the width of avenue G in front of plaintiff's property, or any part thereof? A. 120 feet. (8) Where on avenue G, in front of plaintiff's property, is the main line of the defendant's road located? A. 30 feet to center of track. (9) Where on avenue G, abutting upon plaintiff's property, is any side track or switch located, and how many side tracks and switches, if any, are located at that point? A. One switch north of main line. (10) What is the distance at the nearest point between plaintiff's property and any switch or side track of defendant? A. 44 feet to center of said track. (11) What is the nearest distance between plaintiff's property on said avenue G and the defendant's main line? A. About 27 feet. (12) Is there room for an ordinary vehicle and team to be driven on avenue G between the nearest track and plaintiff's property? A. Yes. * * * (14) Is there room for ordinary vehicles to turn around in said space? A. No. (15) What is the average distance between the north line of plaintiff's property and the nearest track of the defendant? A. About 27 feet. * * * (17) If, in estimating damages, you take into consideration the standing of cars or of coaches on avenue G, state whether the said standing of cars or coaches was in the said avenue G, adjacent to or abutting upon the property of the plaintiff in question. A. We do not. (18) Does the testimony introduced show that defendant's cars were permitted to stand upon said avenue G, adjacent to plaintiff's property, if at all, only for temporary time and temporary purposes? Yes. (19) If you answer the last question in the negative, state whether cars were permitted to stand at such place more than is usual, customary, or incidental to the necessities of railroad business. A. They were not. (20) Were the cars and coaches complained of at all times the same cars and coaches, or did they consist of different cars and coaches, which came and went in the regular course of traffic business? A. Different cars. (21) What was the market value of plaintiff's property immediately before defendant's road was located and its tracks constructed in said avenue G immediately abutting thereon? A. One thousand dollars. (22) What was a fair market value of plaintiff's property immediately after defendant's road was located and its tracks constructed in said avenue G abutting thereon? A. Seven hundred and seventy-five dollars. (24) In estimating damage done to plaintiff's property, what do you take into consideration? A. By taking market value immediately before and after constructing said road. (27) If the plaintiff has sustained damage, by reason of the * -*- * construction of defendant's tracks, did the damage occur by reason of the plaintiff not being able to use the said avenue G for the purpose it had been used prior to the construction of the said tracks? A. Yes. * * ** (34) What, if any, obstruction to the passage of vehicles and teams is there in that part of the said avenue G between the plaintiff's property and the main line of defendant's road? A. None. (25) What, if any, obstruction to the passage of vehicles and teams is there in that part of the said avenue G south of the main line. of the defendant's road, between Maple street, on the east, and Poplar street, on the west? A. None at present. (36) Is plaintiff prevented by any act proved to have been committed by the defendant from having access to his said property at any point on said avenue G abutting thereon? A. Yes. (37) If you answer the last interrogatory in the affirmative, state what it is. A. By not having the road properly ballasted. (43) Can the plaintiff use the said avenue G adjacent to and abutting upon his said property in passing and repassing to and from the same, either to Poplar street, on the west, or Maple street, on the east? A. Yes. (44) Has the defendant, with its tracks and cars, permanently obstructed plaintiff's means of ingress to and egress from his said lots? A. Yes; to a certain extent. ** (46) In estimating plaintiff's damage, do you take into consideration the general inconvenience and annoyance incident to the operation of defendant's railway so near plaintiff's said property? A. No. (47) Is plaintiff prevented from traveling upon said avenue G, and using the same as a public thoroughfare, by reason of the locating and constructing of defendant's tracks therein? A. Yes. * * * * It is claimed by the plaintiff in error that, to justify a recovery in this case for damages by the abutting lot-owner, there must be such an obstruction of the street in Plaintiff's front of the lots owned by the defendant in error contention. that he is practically denied ingress to and egress from his premises; that the findings was not below quite conclusively that the plaintiff deprived of such right; that, notwithstanding the construction of the railroad track in the street, he still has 27 feet of such street in front of his place, free from obstruction; that there is room for or dinary vehicles and teams to pass between the railroad track and his property, and that he can still use avenue G, adjacent to and abutting upon his property, in passing to and from the same, either to Poplar street, on the west, or Maple street, on the east ; and, hence, this case comes within the rule of non-liability of railroad companies, for constructing their lines along public streets, to abutting lot owners for damages. |