VOL. 117.] Utica Hydraulic Cement Co. v. Whalen. one of them. A workman employed in a quarry, in which the constant removal of stone during the progress of the work, by himself and fellow-servants, constantly changes the conditions, assumes the risk of the place becoming unsafe and cannot recover for an injury resulting from the fall of the mass of stone loosened by blasts. Mielke v. C. N. W. R. R. Co., 103 Wis. 1. In Bedford Belt R. R. Co. v. Brown, 142 Ind. 659, it was held that the master is never liable for failing to supply a safe place for the servant to work where the work consists in making safe the place and the condition of which he complains. The Supreme Court of California held in Cullen v. Bull, 113 California, 593, that the rule which requires the master to provide a safe place for the servant is applied when the place in which the work is to be done is furnished or prepared by the master, but that it has no application when the place at which the work is to be done is prepared by the servant himself. That dangers of the character which resulted in appellee's injury were assumed risks of his employment, we think, cannot be controverted. C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492, and authorities there cited. It is insisted, however, that whether or not it was an assumed risk, was a question of fact which was properly submitted to the jury, and their verdict, when approved by the trial court, should have great weight in an appellate court. Where the evidence is conflicting this is true, and an appellate court would hesitate to disturb a verdict and judgment in such a case if the evidence for plaintiff fairly tended to support it, although the weight might seem to be on the other side; but to our minds only one conclusion can be drawn from the evidence in this case upon this subject, and in such cases it has been held that whether an injury was received as a result of an assumed risk becomes a question of law. Browne v. Siegel, Cooper & Co., 191 Ill. 226. That appellee was not in the exercise of reasonable care and caution for his own safety also abundantly appears from the evidence. In addition to the evidence we have before referred to, as to his and his fellow-workmen's Utica Hydraulic Cement Co. v. Whalen. knowledge of the overhanging condition of this crust of frozen earth before it fell, Mr. Swanson, appellant's foreman, testified that appellee told him immediately after the injury that it was his own fault. Mr. Blakesley, general superintendent for appellant, and a Mr. Young, who represented a casualty company in which appellant was insured, testified that ten days after the injury they called at appellee's house, and Young took appellee's statement of the circumstances of his injury in writing. The writing was introduced in evidence and stated that appellee was familiar with the kind of work he was doing and knew it was dangerous, and had been warned by the superintendent not to undermine dirt and rock too far, that remained in the bank; and further stated that no one was to blame for the accident. True, appellee denies making these statements, and no one else testified who heard any of them. Appellee claimed that if he made the written statement offered in evidence he was delirious at the time, and offered proof tending to show that he was not entirely rational at times for several days after the injury. There was also proof in addition to that of Blakesley and Young tending to show that, with the possible exception of conditions produced by medicines, he was in his right mind. Blakesley and Young both testified that he was when the statement was made. That his injury was not the result or fault of the negli gence of appellant is clear, and that he so regarded it at the time of the injury is, we think from the evidence, probably true, but whether he did or not is not material and does not alter the facts. To our minds appellee did not prove a cause of action and the judgment is reversed. Reversed. Finding of facts, to be incorporated in the judgment of the court: We find that John Whalen's injury resulted from an assumed risk of his employment, and also that he was not in the exercise of due care and caution for his own safety at the time. VOL. 117.] Rockford & Interurban Ry. Co. v. Keyt. Rockford & Interurban Railway Company v. George M. Keyt, et al. Gen. No. 4,365. 1. STREETS-presumption as to title to. In the absence of proof, it is presumed that the fee to a street is in the municipality. 2. ABUTTING PROPERTY OWNER-right of, to recover for injury by common carrier. An abutting property owner has a right of action at law to recover damages for an injury resulting by reason of the unauthorized maintenance by a common carrier of a freight business in front of his premises, and the injury being continuing in nature is permanent in the sense that a recovery may be had in a single action for all damages, past, present and future. 3. MEASURE OF DAMAGES-in action by abutting property owner against common carrier. Where a traction company has been organized for the purpose of conducting the business of carrying passengers and without authority departs from the terms of its charter and undertakes the business of carrying freight, the measure of damages in an action by an abutting property owner is the depreciation in the market value resulting from the maintenance by such company of such freight business. 4. DEPRECIATION OF VALUE-what evidence incompetent to establish. Where the question at issue is as to the extent of the depreciation of the market value of real property, it is incompetent to show conduct of defendant merely of a temporary character which could in no wise affect permanently the value of the property in question. 5. VALUE OF PROPERTY-what evidence is incompetent in determining. In an action to recover for injury to real property, where the question at issue is as to the extent of the depreciation of the market value of such property, it is not competent to show the particular use to which such property is or may be put unless such use gives to the property an increased market value over and above what it would be worth for any other purpose. VICKERS, J., dissenting. Action on the case for injury to real property. Appeal from the Circuit Court of Winnebago County; the Hon. ARTHUR H. FROST, Judge, presiding. Heard in this court at the April term, 1904. Reversed and remanded. Opinion filed November 23, 1904. FISHER & NORTH, for appellant. R. K. WELSH, for appellees. MR. PRESIDING JUSTICE FARMER delivered the opinion of the court. This is an appeal from a judgment in the Circuit Court Rockford & Interurban Ry. Co. v. Keyt. of Winnebago county against appellant in favor of appellees for $3,500 damages alleged to have resulted to certain real estate belonging to them in the city of Rockford from the carrying on of a freight business over appellant's tracks in front of and adjacent to appellees' property. Originally the Rockford Railway Light & Power Company owned and operated a street railway system in the city of Rockford for the purpose of carrying passengers. The ordinance granting it the use of the streets contains this provision: "The tracks upon said street shall only be used for passenger traffic and a freight traffic shall not be carried on over said tracks." Prior to the commencement of this suit, the Rockford Railway Light & Power Company was consolidated with and became the property of appellant which then owned and operated an interurban line between Rockford and Belvidere. After the consolidation appellant conducted the street railway system in the city of Rockford, using the tracks, or a part of them, also for its interurban line. It also gave another company operating an interurban line between Rockford and Beloit and Janesville, Wisconsin, the privilege of using the tracks in the city of Rockford. Both these interurban companies were engaged in carrying on a passenger, freight and express business, and without any ordinance or franchise from the city authorizing them to do so, used the tracks of the old company, the Rockford Railway Light & Power Company, to run their freight cars over. Appellees own the north balf of lot seven and the south half of lot eight in block six in the city of Rockford, which has a frontage on Wyman street of sixty-six feet and extends back from the street something over two hundred feet. Upon this property. appellees had erected a two-story brick veneered building with a ten-foot stone basement, which they occupied and used as a livery and sales stable. The front of the building set back from the east line of Wyman street five feet. Wyman street ran north and south and was used by all of appellant's cars. After the consolidation before mentioned and before the commencement of this suit, appellant bought VOL. CXVII 3 VOL. 117.] Rockford & Interurban Ry. Co. v. Keyt. property having a sixty-six foot frontage on Wyman street and adjoining appellees' property on the north, upon which it erected a building for use as a freight depot in the handling, loading and unloading of freight. To get its cars into and out of this freight depot to receive and discharge freight, appellant built a spur track starting from the main track in Wyman street in front of and a little north of the center of appellees' building and curving northeast and then east into the depot. Both appellant and the other interurban line mentioned use this spur track and depot in handling freight and express. Each company operates one freight car which makes two trips daily. Appellees claim their property has been depreciated in value by reason of the construction and operation of this spur track and the carrying on of the freight business by appellant, and this suit was brought to recover therefor. One count of the declaration after reciting the consolidation of the Rockford Railway Light & Power Company with appellant, charges that appellant unlawfully and without authority from the city to do so, constructed the spur or switch track in Wyman street and has ever since carried on "upon and over said spur track a heavy freight traffic, and did continually during every day of said period draw freight cars over said track and said spur, and left said freight cars standing on said track and said spur in front of the plaintiffs' said premises and loaded and unloaded the same at said point. * * And to the end that the same may become and remain permanent, said defendant is now in conjunction with its said switch or spur track, maintaining a freight house of a permanent character immediately north of the said described premises of the plaintiffs, and abutting upon the said Wyman street; that in addition to the passage of said freight cars and stopping and unloading the same, as heretofore set forth, in said street and on the side thereof, in front of and adjoining plaintiffs' premises, said freight business causes large numbers of conveyances and vehicles to come and congregate at or near the said cars in the said street for the purpose of loading and unloading freight, * |