abutter who owned the property when the road was built, or the assignee of his claim. A purchaser from such abutter, under a warranty deed, who bought after the road was put in operation, cannot recover.

Beck, J., dissents.

APPEAL from circuit court, Dallas county.

The plaintiffs, Pratt and others, are the owners of certain lots abutting on Ferry street in the town of Adel, and brought this action to recover damages caused by the construction and operation of the defendants' road along said street. It is stated in the petition that said road was constructed without the consent of the plaintiffs or their grantors, and without condemnation proceedings, or the ascertainment in any way of the damages sustained by the plaintiffs. Plaintiffs claimed that the action involved a title to realty, barred only in ten years by the statute of limitations (Code Iowa, 2529, subd. 5), which defendants denied, and claimed that the action was barred in five years under the Code Iowa, § 2529, subd. 4. Trial by jury. Judgment for the plaintiffs, and the defendants appeal.

Runnells & Walker for appellants.

D W. Woodin for appellees.

SEEVERS, J.-1. The defendants pleaded that the road was constructed along the street under and in pursuance of an ordinanec of the town of Adel, and by and with the consent of the then owner of the real estate described in the petition, and that more than five years had elapsed since a right of action had accrued. A demurrer to this portion of the answer was sustained. Counsel for the appellees contend that the action is not barred until ten years after it accrued, for the reason that

ERTY LIMITA

ΤΟ

a title to real estate by adverse possession cannot be DAMAGES obtained until that period has elapsed. We are unable ARTTING PROP to concur in this proposition, for the reason that the TION OF ACTIONS. plaintiffs do not own the fee; nor do they have any title or interest in or to the street. Their right to recover is not based on such right, but under the statute which provides that a railway track shall not be laid on any street until the damages of the abutting lot-owners are ascertained in the manner provided. for taking private property for public use. Code, § 464. But for this statute the lot-owner would not be entitled to damages; and, as the defendants failed to have the damages ascertained as provided by law, it has been held the lot-owner may maintain an action to recover such damages as he may have sustained. Mulholland v. Des Moines, A. & W. R. Co., 60 Iowa, 740. But the extent of the recovery was not expressly determined in that case, nor in fact has it been done in any case to which our attention has been called. The question in this case is materially different from that class of cases in which it appeared that prop

erty belonging to a person had been taken by a railroad company without an assessment and payment of damages as provided by law. In such case the corporation takes, appropriates, and acquires a permanent easement in and to the real estate. This cannot be done without compensation, to be ascertained and paid as provided by law. In the present case the easement or right to occupy the street was obtained from the town of Adel under express statutory authority giving the municipality the power to make such a grant.

The only object of any condemnation proceedings that the defendants could have instituted was to ascertain the damages of the abutting owners; and in such proceeding permanent damages, or all damages the lot-owner was then or thereafter entitled to, would be the measure of the recovery, and of the defendants' liability. That is precisely the object of this action, and we think there is no well-founded reason why the same measure of damages should not be the rule. The same kind of evidence can be introduced, and full and complete justice be done to both parties. It seems to us there is some warrant for this thought in the statute. It is not provided that any property shall be taken or condemned, but the whole object of the statute is to give the abutting owner such damages as he may have sustained. Now, it is practically immaterial how this is done. If it may be done in one way as well as another, then either may be well adopted. We are aware that it is said in Merchants' Union Barb-wire Co. v. Chicago, R. I. & P. R. Co., 28 N. W. Rep. 494, that such an occupation of a street "is a continuing trespass and a nuisance, for which any owner of the lot may recover; 99 but the extent of the recovery was not determined in that case; nor was it determined at what time the action would be barred. Certain it is, however, that the question as to whether the action was barred was not expressly determined in the cited cases. As the demurrer admits that the action had accrued more than five years prior to the commencement of the action, we think the court erred in sustaining the demurrer.

2. It may be the defendants will be unable to prove the cause of action accrued as pleaded by them, and therefore it becomes necessary to determine at least some of the other errors assigned.

At the time the road was constructed, and prior thereto, the property now owned by the plaintiffs belonged to one Ward, and he conveyed it to the plaintiffs by warranty deed in 1881, which it is conceded was after the road had been constructed and operated. Ward made no assignment of his right to damages to the plaintiffs, unless the conveyance made by him had such an effect.

RAILROAD

MAY

SHOW CONSENT
OF PLAINTIFF'S

The defendants sought to prove that Ward had consented, either orally or in writing, that the defendants might construct and operate the road along said street, and that he so consented prior to the construction of the road, and prior to the conveyance of the property to the

GRANTOR.

plaintiffs. Upon the objection of the plaintiffs, the court refused to permit such evidence to be introduced. In so holding we think the court erred. It may be that mere silence on the part of Ward would not amount to what may be termed a license to enter, or waiver of damages, and it will be so conceded. The defendants offered to prove that he expressly consented that the defendants might construct and operate the road along said street; and if the road was constructed in pursuance of such consent, and money expended by the corporation, it seems to us that Ward, nor his grantees, who have no better right than he has, should not now be permitted to withdraw such consent, or to revoke the license; and such is the rule in this State. Cook v. Railroad Co., 40 Iowa, 451, and cases cited. Irish v. Railroad Co., 44 Iowa, 380, as limited by the opinion on rehearing, does not conflict with that case.

AGES MAY BE

SIGNED.

It may be, as counsel for plaintiffs contend, that a permanent interest in real estate cannot be acquired by a parol license; and it will, for the purposes of this case, be conceded. But, RIGHT TO DAMas we have seen, Ward did not own the street, or any WAIVED OR ASinterest therein. All he was entitled to was damages; and, clearly, he could by parol waive his right thereto. If he consented and agreed that the road might be constructed along the street, and the defendants did so, this, in our opinion, was a waiver of all damages. The time to make the claim was, then, before the defendants expended money on the faith of his promise.

RIGHTS OF

GRANTEE.

3. Ward owned the real estate in question when the construction of the road was completed, and a right of action accrued to him for such damages as he had sustained, unless he did something which would bar a recovery. This being so, did such right of action pass to the plaintiff simply by the conveyance of the property to them? When they obtained their title, the road had been constructed, and was daily operated. Of this they had full knowledge, and this action is brought to recover damages which had accrued to Ward prior to his conveyance. Besides this, Ward was, as we have seen, entitled to recover full or permanent damages. If this be so, it would seem to follow that he can recover such damages now. He has not transferred such right to the plaintiffs, nor has he made any assignment to them. The conveyance of the real estate did not, and could not, have the effect to transfer an accrued right to damages caused by reason of the construction of the road. We, therefore, are of the opinion that, under the conceded facts in the case, the plaintiffs are not entitled to recover.

It may be that what we have said conflicts with what may be said to the logical result of the opinion in the Merchants' Union Barb-wire Case, before cited. Reversed.

BECK, J. (dissenting).-The injury sustained by plaintiff from

the nuisance caused by the railroad is continuing; that is, each day plaintiff sustains injury. His damages may be recovered in one action for the future continuing damages. As no action was brought by him or his grantor, no compensation has been given for the damages. His enjoyment of the land has been impaired since he becanie the owner. I know of no reason or principle of law in the way of recovery by him. Merchants' Union Barb-wire Co. v. Chicago, R. I. & P. Ř. Co., establishes a doctrine which supports his right to recovery.

See Columbus, etc., R. Co. v. Gardner and note, infra.

In an action brought by an abutting property owner to recover special damages for the construction of a railway along the street in front of his property impairing the use of the street, the plaintiff is not barred from recovering by the fact that other property owners in the same locality have also been injured in the same manner.

APPEAL from district court, Bowie county. W. P. McLean, J.
Harrell & Henry for appellant.
Vaughin & Leary for appellee.

FACTS.

GAINES, J.-Appellee brought this suit in the court below to, recover of appellant damages to his homestead in the city of Texarkana, alleged to have been caused by the construction of appellant's railway along the street in front of the property. In an amended petition, filed at October term, 1886, of the court, the lot is described as the south-west corner of block 74, fronting on Ward street. At the spring term, 1887, the cause was called for trial, and plaintiff announced ready. The defendant having obtained leave and filed an amended answer, plaintiff, by leave of the court, filed a second amended original petition, in which he described the property as the north half of block 74, fronting on Ward street. The defendant then asked that the cause be continued, and, this being refused by the court, excepted, and made his bill of exceptions a part of the record.

The court did not err in permitting the amended petition to be

AMENDMENT

COMMENCED.

TRIAL

filed. The statute provides that "the pleadings may be amended upon such terms as the court may prescribe, before the parties announce themselves ready for trial and AFTER not thereafter." Rev. St. art. 1192. It is decided that this is directory, and that it is not error for the court, in the exercise of a sound discretion, to allow the pleading to be amended, even after the trial has cominenced. Parker v. Spencer, 61 Tex. 155; Obert v. Landar, 59 Tex. 475; Whitehead v. Foley, 28 Tex. 10.

GROUNDS-RE

PLICATION.

Nor do we think there was error in refusing defendant's application to continue the cause. The application was oral, and seems to be based solely upon the ground that the CONTINUANCEchange in the description of the property operated as a QUISITES OF APsurprise to the defendant. This would necessarily require a continuance of the case at its request. But such is not the law. Admitting, for the sake of the argument, that the amended petition set up a new cause of action, the question of continuance was largely in the discretion of the court. When the amendment is such as to take the other party by surprise, the rules prescribe that "it shall be cause for imposing the cost of the term upon, and charging the continuance of the cause (both or either) to, the party causing the surprise, if the other party demand it and shall make a satisfactory showing, or if it is otherwise apparent that he is not ready for trial, on account of said amendment

being allowed to be filed by the court." Rule 16, 47 Tex. 619. The defendant filed no affidavit showing that he was not prepared to go to trial; and we cannot say that it was apparent to the court, without such showing, that he was not ready. Both the first and second amended petition, in laying the place of injury, say "the said defendant constructed its said railway in

and upon said Ward street immediately in front of and within 50 feet of plaintiff's said residence on said portion of said block;" the only difference being that the second amendment places the residence upon a different part of the block from that alleged in the first. The defendant having failed to show by written application wherein it was not as well prepared to defend against the latter as against the former amended petition, we think that the court was well warranted in holding, as a matter of fact, that there was no surprise. This conclusion seems borne out by the subsequent proceedings in the case. Ths plaintiff introduced four witnesses, including himself; the defendant seven, including the mayor of the city, the former city surveyor, and neighbors of plaintiff. The facts apparently were very fully presented in that trial; and the motion for a new trial does not show that there was any evidence material to defendant of which it did not have the benefit upon the hearing. The case of Cowan v. Williams, 49 Tex. 380, cited by counsel, is very different from the case at bar.

32 A. & E. R. Cas.-16