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enoe, which is one of the principal channels of busi- are substantially the same as those of a summons in a ness. So I set it down as one of the inflexible rules civil action, with the sole exception (other than the which every lawyer worthy of his profession must ob- exhibition of the original), that the actual delivery of serre, that all notes, cards and letters must be answered the citation to the party in person is not necessary; it promptly and explicitly.

may be left with another at the residence, etc. Another matter, involving not merely questions of It will be found however that there is a very imcivility, but of honor, is that of money matters be- portant distinction where the party to be served is a tween attorneys and clients. The lawyer who collects non-resident. In a civil action it is not sufficient to money for his client and fails to account for and pay obtain an order of publication to show merely that the it orer immediately, is guilty of downright dishonesty defendant is a non-resident; “proof by affidavit” is and in some States is criminal. And here, paren- required, “that the plaintiff has been or will be unthetically, let me appeal to the profession in all the able, with due diligence, to make personal service of States to see that the conversion of a client's money to the summons." Code, $ 439. the attorney's use is made a felony, as it is in Indiana. But there is no such provision with reference to surI address myself to the manhood and integrity of men, rogates' citations. but when this fails let us have the Criminal Code to Section 2522 (subd. 1) provides for an order of publifall back upon. I am sure instances of mivuse of client's cation of a citation “where it is to be served upon funds by lawyers are less frequent than they were, but

a persou who is not a resident of the State." they are still entirely too common.

Section 25:23 (subd. 1) provides for a like order “where Still another complaint relates to the matter the surrogate is satisfied, by affidavit, that the resiof charges. There is no principle of honor which dence of that party cannot, after diligent inquiry, be forbids a lawyer, after stating fairly and fully ascertained by the petitioner.” the law, facts, and chances of clients of ordinary No previous attempt to find and serve the party intelligence, from contracting for such compensation withiu the State is required in either case. The order as clients and attorneys may deem proper, but what I will be granted ($ 2524) upon “proof by affidavit or protest against as absolutely inexcusable and treach-otherwise to the satisfaction of the surrogate, that the erous is overcharges against clients who are unable to case is one of those specified in those sectious protect themselves without incurring greater trouble 2522 and 2523). No other pre-requisite is necessary or and expense. I do not now refer to the widow, the is called for. orphan, or the unfortunate, for against these charges In other words, a non-resident who may be actually should be so small, if any are made, that there can be and notoriously in the State four-ifthy of his time no possible ground of complaint; but I have in my (perhaps in business here every day) may be served by mind business men, and especially non-residents. publication, without any attempt to serve him perThese men, in intrusting lawyers in distant States and sonally within the State. Nay, it is not altogether communities with their business, impose a trust that clear that a personal service upon a non-resident demands reasonable and satisfactory charges. Clients within the State gives jurisdiction. There is no wargenerally and business men in particular will rarely rant for a personal service (or by leaving a copy, etc.) object to fair and just compensation, and a lawyer within the State upon a non-resident at all, except who does not make his charges reasonable and just is in section 2520. Except where special provision is a mercenary shyster.

otherwise made by law, service of a citation within Now I have briefly touched upon some things the the State must be made

* by delivering a lawyer should not do, but there is one other thing all copy thereof to the person to be served, or by leaving lawyers should fearlessly do. If a lawyer wrongs his a copy at his residence, or the place where he soclient, betrays his trust, and proves himself unworthy, journs,” etc. it is the solemn duty of every honest lawyer to bring Reading and comparing the various provisions upon such delinquent to justice. Compel him to right his the subject, it would seem as if only residents were to wrong, and if the facts justify, see that he is dis- be served within the State, and non-residents only by barred. This is the only way to rid the profession of publication, or without the State. charlatans, shysters and scoundrels.

In his note to section 2525, Mr. Throop says: “The Now it may be said these are all old truths, and so new system * * * in cases where personal service they are; but I uudertake to say, Mr. Editor, that cannot be made within the state

corresponds, many of the reader of your journal will realize the pro.

in substance and mode of expression, to the system priety of having this old gospel stated anew to many established in like cases for the courts of record of lawyers, at whose hands. they have suffered; and if general jurisdiction, so that the same rule and adjudilawyers receive such treatment from their professional catious will be applicable to each." brothers, what story could the business-world at large It would seem that in this instance Mr. Throop is tell? I rejoice that the great majority of lawyers are

mistaken. subject to no criticism I have made. A more honora- The ends of justice would be better subserved if ble, high-minded, worthy and just body of men does publications of all original process and the necessity not exist; but let us make a bold strike to root out any of applications therefor were confined to cases of unerrors and vices found among any of the profession. knowu parties, or those whose actual residence or CHARLES L. WEDDING.

whereabouts could not be reasonably ascertained. EVANSVILLE, Ind.

The former practice in Surrogates' Courts permitted a personal service without the State without previous order or direction therefor, and it worked satisfacto

rily. The object of an authorized publication of origiSERVICE OF SURROGATE'S CITATIONS.

nal process against an absent party is to notify such

party of an action or proceeding affecting him and his this State to an apparent omission in the Code re- Practically not one man in twenty advertised against lative to service of citations in Surrogates' Courts ever sees or hears of the published summons or citaupon nou-residents, to which no public reference seems tion, though the mailed copy is usually received. to have been hitherto made.

Where the actual whereabouts of a party is known, a It has been generally supposed that the modes of personal service upon him anywhere in the world service of a citation issued out of a Surrogates' Court (together with a mailed copy) with a sufficiently ex

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tended time to answer, proportioned to distance from and means of communication with the forum (and for this no order should be necessary) would be far preferable to the publication of the process in local journals. Such a service would be direct and effectual, and would save thousands of dollars now wasted upon legal publications.

J. C. LEVI. New York, August 18, 1834.




CITY OF DENVER V. BAYER.* The easement or right of way in a public highway is property

which may not be taken away or damaged without compensation, and the abutting lot owner may recover damages for the interference with his easement and for the decrease in the value of his premises, regardless of the fact whether he or the municipal corporation owns the fee of the

street. An ordinary steam railway is not a local convenience, but is

an additional burden or servitude not comprehended within the easement for an ordinary public street, and which the abutting owner cannot be presumed to have anticipated or consented to. Such owner however cannot recover for any injuries he may suffer in common with the general public, but only for those peculiar to him, which affect his property without injuring that of his neigh

bor. An ordinary railway is a private enterprise, for private proft,

and though the city grant a license, it is not responsible for the special damages incident to individual property

for the construction and maintaining of such road. The measure of damages in suits of this kind is the actual

diminution in the market value of his premises, for any use to which they may reasonably be put, occasioned by the construction and operation of a railroad through the adjacent street. PPEAL from District Court of Arapahoe county.

tle use or benefit; with it they may yield to the owner a handsome revenue. This is especially true of business streets, and business blocks erected thereon. Property, in its broader and more appropriate sense, is not alone the chattel or the land itself, but the right to freely possess, use and alienate the same; and many things are considered property which have vo tangible existence, but which are necessary to the satisfactory use and enjoyment of that which is tangible. The peo. ple and the courts of Colorado are constantly treating as property the right to a use of water acquired by priority of appropriation; the right of user would of course be of no value without the water, but it is this right that is mainly the subject of ownership. Incorporeal hereditaments, particularly those deuominated ** easements," have always been considered property both by the civil and the common law. They are generally attached to things corporeal, and are said “to issue out of or concern " them; but any wrongful inter fereuce therewith has been promptly recognized and punished by the courts.

No good reason is observed for discriminating against the easement in a street connected with the lot of an abutting owner. We are disposed to say that it is property within the meaning of our Constitution; and any interference therewith which results in injury to the realty must, with the exceptions hereinafter stated, be justly compensated if in such a case there be no technical taking. “If private property, there is a damaging thereof within the constitutional inhibition." Whatever permanently prevents the adjacent owner's free use of the street for ingress or egress to or from his lot, and whatever interference with the street permanently diminishes the value of his premises is as much a damage to his private property as though some direct physical injury were inflicted thereon. But sometimes these interferences and resulting injury may properly, even in this State, be held to be damnum absque injuria, as where they are occasioned by a reasonable improvement of the street by the proper authority for the greater convenience of the public, or where a mere temporary inconvenience or injury results from a legitimate use thereof by the public.

The streets of a municipal corporation are highways; they are dedicated to the use of the general public, and it has a right therein in the nature of an easement-a right which is termed an easement by some of the authorities. Whether the fee thereof be in the city or in the adjoining owner this right of the public ordinarily remains the same; if in the former, such fee is generally in trust, for the benefit of the public; if in the latter, it is subject to the right of user or enjoyment by the public for all the ordinary and legitimate purposes of a highway. With us the coutrol thereof is in either case vested by law in the municipal government; it is the duty of the city council to protect and improve the same in such manner as will render it most useful for a highway. In determining what changes and improvements are most conducive to this end the council exercises a large discretion to this end, and unless uureasonable charges are made, or injury results to the adjoining premises through the unskillfulness or negligence of those employed, the owner thereof will not be heard to complain, though in fact the real value and convenience of his property are diminished thereby, for in purchasing his lot, or in relinquishing the publio easement, he is conclusively presumed to have contemplated this power and authority of the municipal government, and is held to have anticipated any injury to his abutting land resulting from a reasonable and proper exercise thereof. But it must be borne in mind that these presumptious attach only so long as


J. P. Brockway, Stallcup, Luthe & Shaffruth, J. A. Dawson and J. A. Stallcup, city attorney, for appellant.

S. E. Brown, for appellee.

HELM, J. Plaintiff below seeks to recover in this action for the obstruction of free ingress and egress to and from his lots by means of the street upon which they front, and for a depreciation in the value of his property caused by the construction and operation upon the street of the railroad mentioned in the pleadings. Three questions are fairly presented for adjudication by the record before us. 1st. Is the abutting lot-owner in this State entitled to compensation when the adjoining street is occupied by an ordinary railroad, and his property is thereby injured ? 2d. If he is, did the city of Denver become liable therefor through the action of its council in passing the ordinance recited in the answer? 3d. If the adjacent proprietor is entitled to compensation, what is the proper measure of damages by which the same shall be determined?

The abutting lot-owner has a peculiar interest in the street. He has rights therein not shared by the general public. If the fee thereof be in the municipality, he owns an easement therein. This easement or right, though incorporeal and intangible,often gives the realty whatever value it may be found to possess; without it the land and the improvements thereon may be of lit.

*S. C., 2 Pac. Rep. 6.

the purpose of the change is to render the street more sation to the adjoining property-owuer, and against convenient and useful as a highway. When this ob- his wishes. And of course the Legislature may deleject is abandoned, and the council direct or permit a gate to the municipal autborities power to grant the change or use wholly foreign to the ordinary purposes same privilege, with like immunity from liability to of u highway, and when thereby adjaceut property is lot-owners along the street occupied. See the followactually damaged, the owner thereof is in this State ing works and the cases cited therein: % Dill. Mun. entitled to reasonable compensation for the in- Corp.(3d ed.) 8 702; Mills Em. Dom., 203; Cooley Const jury.

Lim. (5th ed.) 687. We are not, as may at first seem, The abutting owner may well be presumed to have iguoring this doctrine, or necessarily denying its cortaken into consideration the fact that the grade of the rectuess under the law prevailing where it has been street might be raised or lowered; that pavement declared. A careful examination shows that almost might be laid and bridges and culverts constructed; without exception those decisions, which consider the and that a street railroad even might be built and op- subject and deny a right to compensation for injury erated thereon; and it may fairly be presumed that in where the abutting owner does not also own the fee of purchasing he anticipated and allowed for the possible the street, were rendered under Constitutions which reor probable damages to result from these and similar quire compensation only for the taking of private changes, or that he signified his consent thereto, and property, and a majority of those opinions are largely thus deprived himself of any right to compensation devoted to analyzing the word “taken" and to defintherefor. But no such presumption, consent or estop- ing its meaning as used in their respective Constitupel applies to the use of the street by an ordinary rail- tions. road. The argument that such a railroad is an im- The Constitution of Colorado contains the following proved public highway, and therefore its construction provision : “Private property shall not be taken or and operation in the street is only an improved and ap- damaged for public or private use without just compropriate use thereof, we do not regard as resting pensation.” We believe that the framers of this ineither upon correct principle or sound logic. The

strument did not insert the words “or damaged” street is designed for local convenience and use, and is therein without a purpose.

We cannot consent to the dedicated thereto; it should be entirely unobstruct

proposition that these words add nothing to the word ire, save as temporary obstructions occur in the im- taken,” also used, and that the provision would be provement thereof by the proper authorities or in its

just as broad without them. It is hardly necessary to legitimate use by the public.

invoke the course of construction which forbids that An ordinary railroad is not a local convenience; the

we shall consider them as either meaningless or merely city is but one of its termini; its cars do not stop at cumulative. the beck of any one who may wish to ride, and do not

The position taken in some of the cases is that if the commonly transport passengers from one point to

adjoining owner has not the fee of the street, and the another within the city; its ties and rails as generally

value of his property be diminished fifty per cent by laid are a permanent interference with the use of the

the construction of the railroåd therein, he has no restreet for ordinary vehicles; the smoke and dust, in

dress; while if he be the fortunate owner of this fee, terruption and noise produced by operating its trains

he may recover, not only for the taking or appropiaare a perpetual annoyance, and the danger a constant

tion of the street, but also for the interference with menace, in the occupation and enjoyment thereof for

his easement, and the decrease occasioned in the value the usual purposes. We cannot escape the conclusion

of his premises. Yet whether he own the fee or not, that such a railroad is an additional burden or servi

his rights in connection with the street, wbile it retude not comprehended within the easement for an

mains a street, are practically the same. ordinary public street or highway--a burden or servi

sion of this fee in no special way contributes to the use tude which the abutting owner cannot be presumed

or enjoyment of his lot, and enables him to exercise to have anticipated or consented to.

no greater control over the street tban he would have The railroad is a public benefit; it is generally of

without it. This distinction as to the fee seems to great advantage to the town or city to or through which it is built and operated. And for any injury or annoy

rest upon the fact that in our case there is a wrongful

incumbrance of this freehold, while in the other there ance occasioned thereby which an adjoining owner

is not. The actual injury inflicted is about the same shares in common with the general public, he ought

in both, But while if the fee vests in the city there not to recover; but for those damages which are pe

may be no wrongful incumbrance of his estate, in ihe culiar to him, which affect his property and impair its

sense of these cases, there is, uuder our Constitution value, without injuring that of his neighbor, he ought

at least, a damaging thereof for which he is entitled to in justice to receive compensation. We are aware that upon some of these questions the courts are by no

compensation. means in accord. Our views conflict with the decis. Constitutional provisions, where only the taking of ions of courts for whom we entertain the profoundest private property is to be compensated, have frequently respect. But while this want of harmony is to be re

beeu held to include any “ direct physical obstruction gretted, it cannot be avoided, for agreement with all

or injury” to the abutting premises, even though the able decisions is impossible. No attempt has been

there be no actual appropriation of the ground itself, made to review in this opinion the cases; the task

as where by excavation or embankment water was would be too long and laborious; we have not stated

caused to overflow the same-a kind or class of injur

ies for which in the absence of constitutional or statuexhaustively the reasons controlling the views adopted upon this branch of the case, por shall we undertake

tory enactment, a remedy existed at common law. to do so. There are however a few subjects and decis

Toledo, W. & W. Ry. Co. v. Morrison, 71 Ill. 616; ions which we feel called upon to more specifically con

Hooker v. New Haven & N. Co., 14 Comm. 146; Pumsider.

pelly v. Green Bay Co., 13 Wall. 166. We think this A distinction has sometimes been made with refer- construction of the provision eminently reasonable and ence to the fee of the highway. The doctrine is an- just. Accepting it as correct, we are forced to draw nounced and supported by a strong preponderance of

the inference that the words “or damaged'

” with us authority that if the fee of the street be in the public,

were intended to reach still another class of injuries. or in the municipality for the use of the public, the

To this class belong, in our judgment, those comLegislature may authorize it to be used for the con- plained of in the case at bar. Upon this subject see struction and operatiou of a railroad, without compen.

Gottschalk v. C., B. & {Q. R. 'Co. 14 Neb, 389;

His posses



also Transportation Co. v. Chicago, 99 U. S. 635, and have given him a cause of action before the statute, other cases hereinafter considered.

and which entitles him to compensation under secThere has heretofore been no interpretation of our tion 68.” The plaintiff's recovery of $1,900 was susconstitutional provision by this court with reference tained. to damages, such as those complained of in the case In East and West India Docks V. Gattke, 3 McN. & before us.

G.155, defendant professed to bave incurred “great peThe rights of the parties in Colorada Cent. R. v. cuniary loss and damage by reason of the construction Mollandin, 4 Col. 154, occurred prior to the adoption of of the plaintiff's railway in the immediate vicinity of his that instrument; and for this reason, although the de- premises;' he claimed compensation under said act, cision was rendered subsequent thereto, no mention on the ground that his property was injuriously afwas made or discussion had of the constitutional inhi- fected. The lord chancellor declines to maintain an bition. But section 48 of chapter 18 of the Revised injunction permitting defendant's proceeding by suit Statutes of 1868 provides that private property shall to collect damages for the injury. His lordship sugnot be “taken or injuriously affected ” without com- gests that under this statute a party is entitled to compensation. This statuto remained in force till 1876; pensation where his lands are not “ taken, used or diand it may be urged that the decision in the Mollandinrectly interfered with," but where there is a “consecase, supra, was governed thereby. We may admit quential" injury, resulting in the actual depreciation that the words of the statute, “injuriously affected," of the value thereof. are as comprehensive in meaning as the word “dam- Beckett v. Midland Ry. Co., L. R., 3 C. P. 82, was a aged” used in the Constitution, and yet not be con- case where the highway, fifty feet wide in front of cluded by the foregoing decision. The statute was not plaintiff's premises, was narrowed by means of a railrelied upon or discused in that case; not a word ap- road embankment to thirty-three feet in width. pears in the opinion itself nor in the briefs and argu- Plaintiff claimed, among other things, that by the bar ments of counsel to show that it was even remotely rowing of the road and the embankment the value of considered. The opinion of a court is not decisive of his property was reduced. Bovill, C. J., speaking of a question not mentioned therein, although the same the property's being injuriously affected under said might, and perhaps should, have been passed upon. section 68, says: “I am also of opinion that but for the It is generally a party's privilege to waive a statutory act of Parliament which authorized the making of the right; and courts, particularly those of last resort, do railway and the narrowing of the road, an action might not as a rule press upon litigants the benefit of a right have been maintained by the plaintiff for such injury or privilege which they have elected not to invoke or and that he is entitled to claim compensation under claim. Had the court been called upon for a construc- the provisions of the act I have referred to;' and Wiltion of that statute, it is probable that a view would lis, J., “I am of the same opinion. * * lt must have been adopted similar to the one here announced be conceded that there was a damage to the owner of as to our constitutional provision.

the house from the narrowing of the road in front of The sixty-eighth section of the Land Clauses Con- it. It is not worth so much to sell or let as it was besolidation Act, 8 & 9 Vict.,ch. 18, contains the following fore. I will not cite authorities upon a matter which is language: “If any party shall be entitled to any com- so plain.” pensation in respect of any land or any interest therein The learned judge who delivers the opinion in Rigney which shall have been taken for or injuriously affected v. City of Chicago, 102 Ill. 64, formulates the rule deduby the execution of the works, and for which the pro- cible from the foregoing and other cases in the followmoters of the undertaking shall not have made satis- ing language: “If there has been some direct physical faction,” such compensation was to be determined as disturbance of a right, either public or private, which in the act provided. It will be observed that this sec- the plaintiff enjoys in connection with his property, tion contains the words “taken” and “injuriously af- and which gives to it an additional value, and [ir] by fected," used in our statute of 1868, and it is not im- reason of such disturbance he has sustained special probable that these words were borrowed, either di- damage with respect to his property in excess of that rectly or indirectly, from sec. 68 aforesaid,or from some sustained by the public generally, the common law other English act using them in the same connection. would, but for some legislative enactment, afford him The English courts, in interpreting this statute, have redress. A recovery was sustained where the injury usually (not always) held that the words “injuriously resulted from the construction, without negligence, affected” only allow compensation where a right of ac- through the public street, of a viaduct by the municition would have existed at common law; yet in their pal authorities." application of this construction they have been ex- It is immaterial whether or not we declare the Eng. treively liberal, sometimes declaring that actionable lish rule thus formulated in Illinois sufficieutly to recat common law which we generally do not so con- ognize a right of action at common law in cases like sider.

this; for whether we so conclude and say with these In McCarthy v. Metropolitan Board of Works, L. R., English cases, interpreting words similar in meaning ✓ C. P. 508; 5 Eng. R. 256, the action was brought to to those of our Constitution, that such language only recover for the depreciation in value occasioned to gives a right to recover where it would have existed at plaintiff's premises by the stopping up and destruction common law, or whether we interpret the provision of a certain dock near the same. Plaintiff had no right of our Constitution, as did Lord Westbury the English or easement in the dock other than his right as one of statute, as recognizing a new right of action, the result the public;" “nor was there appurtenant or other- is the same: in either event parties are entitled to wise belonging to plaintiff's premises any easement or compensation for such injuries as are here complained privilege in or to the dock.” But by reason of their of. proximity thereto-there being only a narrow street Lord Westbury, in the case of Ricket v. Directors, between the buildings-were rendered valuable, either etc., of Metropolitan Ry. Co., L. R., 2 Eug. & Ir. App. to sell or occupy; and by the destruction thereof they 175, questions the correctness of the above rule as apwere permanently damaged and diminished in value. plied to the English statute, in the following vigorous The court, per Willis, J., says: “Notwithstanding the language: “If this view be correct, it follows that it is striking differences of opinion which bave been ex- a mistake to lay down, as I find it in several cases, and 'pressed upon this subject, I cannot entertain the in effect, in the judgment of four judges in this case, slightest doubt that what was done here was an inju- that the injury intended by the words “injuriously afrious affecting of the plaintiff's property, which would fected' must be one for which, if there has been no

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statute enabling the company to do the act, an action bound by the action of its council sanctioning, or atwould have lain for the injury at common law;" and tempting to sanction, disobedience of law. again he says: “ Where therefore the general railway The case of Stack v. City of East St. Louis, 85 111. 377, scts use the term “injuriously affected,' the word “in- cited by counsel, might possibly be thought to recogjuuriously' does not mean "wrongfully' or 'unlaw- nize a right of recovery in a case like this, upon the fully,' nor does it imply that compensation is limited doctrine of principal and agent. But we cannot realto cases where the act done is such as but for the ize the fitness of this application of the rule of agency. powers given would be a tort at common law. The If the city council determine to make some change in a words mean 'damnously affected' only.

street for the benefit of the public, and proceed to do There is nothing in the statutes to warrant the posi- the work, the contractors or employees would be the tion that there should be no compensation where at city's agents; for injuries arising from their unskillcommon law there would have been no right of ac- fulness or negligence the municipality would unquestion.”

tionably be liable. But the construction of an ordiIn Transportation Co. v. Chicago, 99 U. S. 635, the

nary railroad is not, as we have found, an improvecourt, in speaking of the Constitution of Illinois of

ment of the street for the convenience and benefit of 1870 say: "It ordains that private property shall not

the local public. It is a private enterprise, for private be takeu or damaged for public use without just com

profit. True, the city attaches certain conditions to pensation. This is an extension of the common pro

the license granted, such as that the road-bed shall be vision for the protection of private property.'

upon a certain grade; that culverts shall be constructed The following cases were decided under constitu

for the gutters, and planks laid at the crossings, but tional inhibitions similar to ours in this respect, and

otherwise the municipal authorities do not control the tbey assume without discussion that the words “or

enterprise; whether we term the railroad company damaged," thus used, are the recognition by their re

purely a private. or whether call it a quasi public corspective Constitutions of a new right of recovery; they

poration, the situation remains unchanged. In condo not limit such right to cases where an action would,

structing and operating the road it is acting for itself, without the constitutional provision, have lain at com.

and not for the city. It is no more the city's agent mon law: Williams v. G. C. & S. F. Ry., 1 Denver L. J.

tban is the individual licensed by ordinance or resolu367; Graves v. G. C. & S. F. Ry., 1 Tex. L. Rev.; Johnson

tion to engage in some legitimate private business reF. Purkersburg, 16 W. Va. 40:2; Moore v. City of Atlanta,

quiring such license or authority. If the railroad com1 Denver L. J. 78; City of Atlanta v. Green,

pany disobey the law in building or operating its road 67 Ga. 386; City of Elgin V. Eaton, 83 Ill.

the city is no more responsible therefor than it would 535. The two Texas cases-i. e., those of Williams and

be for a tort of the private individual in the pursuit of

his business aforesaid. Graves, supra--were brought to recover for injuries from the use of the street by a railroad. The others

The remaining question to be passed upon refers to were against the cities for damages caused in grading

the measure of damages adopted by the court in admitthe streets by their respective councils. The right to

ting testimony and in charging the jury. Unlike acrecover compensation was sustained in all. As will be

tions for trespass to realty, where the plaintiff can observed, we do not go so far as some of these cases;

only recover for the injury done up to the commencethat our position might not be misunderstood, we have,

ment of the suit, in suits of this kind a single recovery at the risk of being charged with obiter dictum, sug

may be had from the whole damage to result from the gested that as at present advised, we think that for in

act, the injury being continuing and permanent. Afjuries caused by a reasonable change or improvement

ter thorough examination of the cases we are of opinof the street by the council, in careful manner, the

ion that the following rule is just and equitable, and abutting owner should not recover.

that it is sanctioned by the weight of authority when We now proceed to consider the liability of the city entitled to recover the measure of his compensation

the action is against the proper party,aud the plaintiff is in this case for such compensation. The ordinauce be- is the actual diminution in the market value of his fore us might perhaps be construed as in no way uudertaking to compromise the rights of adjoining

premises for any use to wbich they may reasonably be

put, occasioned by the construction and operation of owners in cases like this to compensation, by simply

the railroad through the adjacent street. The jury of granting a license on behalf of the public and the city

course must not consider any fluctuations in value regovernment to occupy the street in question; we might sulting from other causes. No personal inconvenience possibly regard it as merely a declaration that both the

or annoyance, no interference with his trade or busi. city government and the general public consented to

ness, no decrease in the rental value of his premises such use of the street, and would interpose no obiec- occasioned by the construction or operating of the railtion or obstacle thereto. To this extent the council

road, and no temporary interruption or damage had power to act; beyond this it could not go. Under

thereby constitutes the test. None of these things can such a view of the ordinance no one would contend for

enter into the question, except as they may appropria moment that the action against the city could be

ately aid in determining the actual depreciation in maintained. On the other hand, if the ordinance in

market value of the realty and improvements. If by question was intended to confer upon the company a

reason of the proximity of the railroad thereto, plaintright to use the street for railroad purposes, without

iff's property is in any way peculiarly benefited; that compensation to adjoining owners where permanent

is, if he experiences a benefit therefrom not shared injury results from the use, it is in this respect an ef

generally by the property-owners of the city, such fort to authorize something expressly forbidden by

benefit should be considered and the value thereof althe Constitution. The act of the council was a clear lowed in determining the amount of his compensausurpation of power not possessed; the ordinance, in

tion. so far as it denies the right to compensation, is ultra The judgment will be reversed and the cause revires and void. We find no statutory provision au- manded, with directions to the District Court to disthorizing such action by the city council, and if such a

miss the action. statute existed it would also be void. But if the city

[That owner is entitled to compensation if he owns council assume, or attempt to assume, powers not con- fee, see Railroad Laws of New York (ed. 1883), Apferred, their action is not binding upon the corpora- pendix, page 9. As to right to lay tracks without comtion. 2 Dill. Mun. Corp., SS 767, 768, 563, and cases

pensating owner of adjoining lauds, id. 21. When fee cited. Certainly a municipal corporation cannot be remains in owner, id. 19.-ED.]

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