purpose, and it is too late for him to maintain ejectment, or secure an injunction. His silence and inactivity did more than impair his remedy. It destroyed his right of action for possession as well as for an injunction. It does not follow that, because the appellant cannot sue for an injunction or maintain an action of ejectment, he is remediless; on the contrary, as is clearly indicated in several cases, and directly decided in one case at least, he may maintain an action for damages. Indiana, B. & W. R. Co. v. Allen, 113 Ind. 308; Indiana, B. & W. R. Co. v. Allen, 113 Ind. 581; Strickler v. Midland R. Co., supra.

In Indiana, B. & W. R. Co. v. Allen, supra, it was said: "We do not controvert the doctrine that acquiescence will not preclude a recovery of damages. That we affirm to be the true doctrine. Unless prolonged until the statute of limitations has run, an action for damages will lie; after that period, however, it is conclusively presumed that the damages have been paid." Vide opinion p. 584. This doctrine is sustained by the cases of Rusch v. Milwaukee, L. S. & W. R. Co., II, 54 Wis. 136, 6 Am. & Eng. R. Cas. 609; Evans v. Missouri, I. & N. R. Co., 64 Mo. 453.

If the appellant had brought this action before the statute of limitations had run, we have no doubt that he would be entitled to recover damages for the injury to his Limitation of property. It is evident from what has been said action. that the only right of action which the appellant is in a situation to assert is one for injury to property. He cannot recover the property itself, nor can he have an action on a contract, for there is no contract; so that if he had any right of action at all, it must be for the injury to him as the owner of the fee. This injury consists in making a wrongful use of his land, and his right of action is for the damages resulting from that wrong. It was, therefore, correctly held in Strickler v. Midland R. Co., supra, that the six years statute is the one which rules the case. It cannot be successfully contended that each day's continuance of the wrong gave a fresh cause of action, for the occupancy of the street was for a permanent purpose, and of this purpose the acts done under the license from the town gave full notice. Where there is an occupancy of a street for a permanent purpose, as for the purpose of building and operating a railroad, the abutting owner cannot maintain an action for each day's occupancy. The case is entirely different from one wherein the wrong is a mere fugitive or temporary trespass, or a mere entry without color of right, for the work undertaken was in its nature permanent, and there was color of right under the license granted by the municipality. If a railroad company could be sued

for each day's occupancy, the burden imposed upon it would be a grievous one, which no principle of justice would justify. If the property owner, by one action, can recover all the damages he suffers, he secures all that justice can award, and the. railroad company is compelled to pay all that equity demands. The doctrine that successive actions cannot be maintained in such cases as this, and that the property owner must recover once for all, has been again and again asserted by this court. White v. Chicago, St. L. & P. R. Co., 122 Ind. 317,43 Am. & Eng. R. Cas. 156; City of Lafayette v. Nagle, 113 Ind. 425, 22 Am. & Eng. Corp. Cas. 411; Indiana, B. & W. R. Co. v. Allen, 113 Ind. 308; City of Terre Haute v. Hudnut, 112 Ind. 542, 18 Am. & Eng. Corp. Cas. 302; City of North Vernon v. Voegler 103 Ind. 314, 13 Am. & Eng. Corp. Cas. 434: Burrow v. Terre Haute & L. R. Co., 107 Ind. 432, 29 Am. & Eng. R. Cas. 574; Lafayette Gravel-Road Co. v. Stockton, 43 Ind. 328; Lafayette, etc., Co. v. New Albany & S. R. Co., 13 Ind. 90. The decisions of other courts assert the same doctrine. Vide authorities cited in note, p. 199, Elliott, Roads & S. The rule that a property owner must recover once for all does not preclude him from recovering damages for injuries resulting to his property from negligence in operating the railroad, for the abutter's right of action for damages caused by culpable negligence in operating a railroad rests upon an entirely different ground from that upon which rests the right of action for injury to his property by the wrongful entry. White v. Chicago, St. L. & P. R. Co., supra. A railroad company which obtains the privilege of using a street, and pays damages to the abutting owner, secures a right to use the street in a reasonable and necessary manner, but it does not secure a right to use it in a culpably negligent manner, to the injury of abutting property. But there is. here no question as to the mode in which the appellee operated its railroad, for the single question is as to the right of the appellant to recover for the injury done to his property by the wrongful occupancy of the street upon which it abuts, so that the case comes within the rule that the abutting owner must recover once for all, and falls within the statute limiting the time within which actions for injuries to property shall be brought. In holding, as we did in Strickler v. Midland R. Co., supra, and as we do here, that the appellant's right of action is barred by the six-years statute, we are supported by adjudged cases which assert that, where no claim is made within the period of limitation, it is conclusively presumed to have been paid. Midland R. Co. v. Smith, 125 Ind. 509, (September 18, 1890) Blair . Kiger, 111 Ind. 193; Brookville & M. Hydraulic Co. 7. Butler, 91 Ind. 134. Vide authorities cited note 4, p. 206, Elliott, Roads & S. If

it be just to presume payment of compensation in one case, so it must be in all cases of like character. The presumption must be made, or else the long settled rule that statutes of limitations are statutes of repose must be disregarded. The decision of the trial court must be sustained, upon the ground that the facts stated in the special verdict show that the appellant's right of action is barred by the statute of limitations. Judgment affirmed.

Construction of Railroad in Street-Right of Abutting Owner to Maintain Ejectment or Injunction.-See Tomkins 7. Augusta & K. R. Co., 43 Am. & Eng. R. Cas. 127, note 129; Taylor v. Bay City St. R. Co. (Mich.), 43 Id. 335; Georgia S. & F. R. Co. v. Ray, (Ga.), 43 Id. 95; Fogg v. Nevada, California & Oregon R. Co., (Nev.), 43 Id. 105; Harbach 7. Des Moines & K. C. R. Co. (Iowa), 43 Id. 115.

Right of Abutting Owner to Enjoin Construction of Railroad Along Highway. In Yates v. Town of West Grafton, (W. Va., March 7, 1891), 12 S. E. Rep. 1075, it was held that the owner of lots and lands adjoining a county road which has been included within the limits of an incorporated town, along which such railroad is constructed, whether they own the fee in the ground occupied by the road or not, cannot enjoin the railroad company from constructing its railroad along the road in the manner required by the statute, unless the injury therefrom will entirely destroy the value of his property, and thereby be equivalent to a taking of it by said railroad company. The court said: “Our Code, (chapter 54, § 50,) among other things, expressly confers upon railroads the power to construct such railways across, along, or upon any stream of water, watercourse, street, highway, road, turnpike, or canal which the route of such railroad shall intersect or touch; but such corporation shall restore the stream, water course, street, highway, road, turnpike, or canal thus intersected or touched to its former state, or to such state as not unnecessarily to have impaired its usefulness, and to keep such crossing in repair: * * * provided, that, in case of the construction of said railroad along highways, roads, turnpikes, or canals, such railroads shall either first obtain the consent of the lawful authorities having control or jurisdiction of the same, or condemn the same, under the provisions of section 48 of this chapter;' and Dillon's Municipal Corporations (volume 2, § 666) asserts the law upon this subject as follows: The plenary power of the legislature over streets and highways is such that it may, in the absence of special constitutional restriction, vacate or discontinue the public easement in them, or invest municipal corporations with this authority. Without a judicial determination, a municipal corporation, under the authority conferred in its charter 'to locate and establish streets and alleys, and vacate the same,' may constitutionally order the vacation of a street; and this power, when exercised with due regard to individual rights, will not be restrained at the instance of a property owner claiming that he is interested in keeping open the streets dedicated to the public. Under the law, then, as it exists, the municipal authorities of said town having the right to authorize said railroad company to construct and operate its railroad along a portion of said road lying within the limits of said town; and said railroad, under the statute, having the power to accept said use and privilege, and to construct its railroad along said road, it being expressly provided in the statute that, in so doing 'such railroad shall restore the road so intersected or touched to its former state, or to such a state as not unnecessarily to impair its usefulness;' and it having been held, as we have seen, in Morris & É. R. Co. v. Newark, 10 N. J. Eq. 352, that 'the authority to use a public highway for the pur

pose of a railroad, retaining the use of such highway for all ordinary purposes, subject only to the inconvenience of the railroad, is not such taking of private property from the owner of the fee of the adjacent lands as is contemplated by the provision of the constitution in reference thereto my conclusion is that the plaintiff by his bill and exhibits has not presented such a case as would entitle him to the relief prayed for.

Same Special Damage not Suffered by the Public in General.-In Chicago St. L. & P. R. Co. v. Eisert, (Ind., Feb. 4, 1891), 26 N. E. Rep. 759, the owner of property abutting upon a highway applied for a restraining order prohibiting the defendant railroad company from constructing an additional track on the street in front of her property. The complaint alleged that defendant railroad company was proceeding to lay a track within eight feet of the curb stone in the street in front of plaintiff's premises, while the ordinance authorizing the use of the street directed the road to be located 15 feet from the curb stone, and to raise the grade of the street above the established grade, which it had no right to do, obstructing the street, and entirely cutting off plaintiff's only means of ingress and egress by wheeled vehicles, endangering her property by fire, and the lives of her family, obstructing the natural flow of the water, and turning it upon her premises. Held, that it stated a case of special damage not suffered by the public in general, and showed the right to an injunction.

Action to Enjoin Maintenance of Railroad in Street and for Damages-Sin gle Cause of Action.-In Shepard v. Manhattan R. Co., 117 N. Y. 442, it was held that a complaint seeking to enjoin the maintenance of an elevated railroad upon a street in front of plaintiff's property, and for damages caused by its maintenance, contains but a single cause of action.

Acquiescence of Landowner in Construction of Road-Injunction or Ejectment-Waiver of Landowner's Right.—A landowner who stands by and permits a railroad company to enter and construct its road upon a street or complete its grade, or expend a considerable amount of money in the construction of its roadbed, thereby waives his right to maintain either an action of ejectment or for an injunction to prevent further prosecution of the work. But if the company has unlawfully entered upon the land, the owner may maintain an action for damages, or institute proceedings under the statute for the assessment of his damages. Strickler v. Midland R. Co., 125

Ind. 412.

Dissolution of Injunction on Bond.-An injunction to prohibit the construction of a public work, the building of which involves no taking or invasion of plaintiff's property, but only an alleged consequential damage to its value, which is conjectural and incapable of ascertainment until after the construction, may be properly bonded, notwithstanding the provision of article 156 of the constitution. McMahon v. St. Louis, A. & T. R. Co., 41 La. Ann. 827.

An injunction to prevent a street railroad company from building its track will be dissolved where the company gives a sufficient bond conditioned to pay the plaintiff all damages done his property, where the evidence as to damage is conflicting and it is doubtful whether any damage will be sustained by plaintiff. Fouche v. Rome St. R. Co., 84 Ga. 233.

Limitation of Action to Recover Damages for Construction of Railroad in Street. Where a railroad company unlawfully entered and took possession of a street, and constructed and completed its grade, the cause of action of the abutting landowner thereupon accrued, and under section 292, Ind. R. S. 1881, which limits actions for injuries to real property to six years, the action must be brought within six years from the completion of the grade, or it is barred. Strickler v. Midland R. Co. 125 Ind. 412.

Injury Caused by Laying Additional Tracks in Street-Limitation of Action. The owner of property abutting upon a street in which a railroad

company has wrongfully constructed a number of tracks, and which it uses for a switch yard, can recover damages for injuries to his property occa sioned by the company's laying and using a number of additional tracks, although the original tracks which did not damage his property were laid more than two years-the period of limitation-before suit was brought for the damage caused by the additional tracks. Gulf, C. & S. F. R. Co. v. Necco, (Texas Sup. Ct., March 21, 1891), 15 S. W. Rep. 1102.

HALSEY

ข.

RAPID TRANSIT STREET RAILWAY Co.

(New Jersey Court of Chancery, December 6, 1890.)

Ownership of Land in Street.-The ownership in land over which a street has been laid is, for all substantial purposes, in the public, although the owner retains the naked fee, and the right of the public to use it for public travel is the primary and superior right.

Right of Public to Use Street.-Land taken for a street is taken for all time, and compensation is made once for all, and, by the taking, the public acquire the right to use it for travel, not only by such means as were in use when the land was acquired, but by such other means as new wants and the improvements of the age may render necessary.

What Constitutes Legitimate Use of Street.-Any use of a street which is limited to an exercise of the right of passage, and which is confined to a mere use of the public easement, whether it be by old methods or new, and which does not, in any substantial degree, destroy the street as a means of free passage, common to all the people, is a legitimate use, and within the purposes for which the public acquired the land.

Obstruction of Highway-Right of Action by Individual.-An individual cannot maintain an action for injury caused by obstructing a highway unless he suffers some private, direct, and material damage beyond the public at large, as well as damage otherwise irreparable. Mere diminution of the value of his property by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief.

Same A Preliminary Injunction will not be granted where either the complainant's right is in doubt or where the damage which will result from an invasion of his right is not irreparable.

An Abutting Owner is Allowed to Exercise Privileges on the Sidewalk, in front of his premises, which he may not exercise elsewhere in the street, because he is chargeable with the whole expense of maintaining the sidewalk.

Use of Highway by Abutter.-When not restrained by ordinance or otherwise, an abutter may use the highway in front of his premises for loading and unloading goods, for vaults and chutes, for awnings and shade trees, but only on condition that he does not interfere with the safety of public travel. The public right is paramount, and that of the abutter subordinate. Exercise of Corporate Franchise-Implied Powers.-Where a corporation is authorized by a general grant to exercise a franchise or to carry on a business, and the grant contains no words either defining or limiting the powers which the corporation may exercise, it will take, by implication, all such powers as are reasonably necessary to enable it to accomplish the purposes of its erection.