ence, which is one of the principal channels of business. So I set it down as one of the inflexible rules which every lawyer worthy of his profession must observe, that all notes, cards and letters must be answered promptly and explicitly.

Another matter, involving not merely questions of civility, but of honor, is that of money matters between attorneys and clients. The lawyer who collects money for his client and fails to account for and pay it over immediately, is guilty of downright dishonesty and in some States is criminal. And here, parenthetically, let me appeal to the profession in all the States to see that the conversion of a client's money to the attorney's use is made a felony, as it is in Indiana. I address myself to the manhood and integrity of men, but when this fails let us have the Criminal Code to fall back upon. I am sure instances of misuse of client's funds by lawyers are less frequent than they were, but they are still entirely too common.

Still another complaint relates to the matter of charges. There is no principle of honor which forbids a lawyer, after stating fairly and fully the law, facts, and chances of clients of ordinary intelligence, from contracting for such compensation as clients and attorneys may deem proper, but what I protest against as absolutely inexcusable and treacherous is overcharges against clients who are unable to protect themselves without incurring greater trouble and expense. I do not now refer to the widow, the orphan, or the unfortunate, for against these charges should be so small, if any are made, that there can be no possible ground of complaint; but I have in my mind business men, and especially non-residents. These men, in intrusting lawyers in distant States and communities with their business, impose a trust that demands reasonable and satisfactory charges. Clients generally and business men in particular will rarely object to fair and just compensation, and a lawyer who does not make his charges reasonable and just is a mercenary shyster.

Now I have briefly touched upon some things the lawyer should not do, but there is one other thing all lawyers should fearlessly do. If a lawyer wrongs his client, betrays his trust, and proves himself unworthy, it is the solemn duty of every honest lawyer to bring such delinquent to justice. Compel him to right his wrong, and if the facts justify, see that he is disbarred. This is the only way to rid the profession of charlatans, shysters and scoundrels.

Now it may be said these are all old truths, and so they are; but I undertake to say, Mr. Editor, that many of the reader of your journal will realize the pro. priety of having this old gospel stated anew to many lawyers, at whose hands. they have suffered; and if lawyers receive such treatment from their professional brothers, what story could the business-world at large tell? I rejoice that the great majority of lawyers are subject to no criticism I have made. A more honorable, high-minded, worthy and just body of men does not exist; but let us make a bold strike to root out any errors and vices found among any of the profession. CHARLES L. WEDDING. EVANSVILLE, Ind.

SERVICE OF SURROGATE'S CITATIONS.

DESIRE to call the attention of practitioners in this State to an apparent omission in the Code relative to service of citations in Surrogates' Courts upon non-residents, to which no public reference seems to have been hitherto made.

It has been generally supposed that the modes of service of a citation issued out of a Surrogates' Court

are substantially the same as those of a summons in a civil action, with the sole exception (other than the exhibition of the original), that the actual delivery of the citation to the party in person is not necessary; it may be left with another at the residence, etc.

It will be found however that there is a very important distinction where the party to be served is a non-resident. In a civil action it is not sufficient to obtain an order of publication to show merely that the defendant is a non-resident; "proof by affidavit" is required, "that the plaintiff has been or will be unable, with due diligence, to make personal service of the summons." Code, § 439.

But there is no such provision with reference to surrogates' citations.

Section 2522 (subd. 1) provides for an order of publication of a citation "where it is to be served upon * * * a person who is not a resident of the State." Section 2523 (subd. 1) provides for a like order "where the surrogate is satisfied, by affidavit, that the residence of that party cannot, after diligent inquiry, be ascertained by the petitioner."

No previous attempt to find and serve the party within the State is required in either case. The order will be granted (§ 2524) upon "proof by affidavit or otherwise to the satisfaction of the surrogate, that the case is one of those specified in those sections" (i. e. 2522 and 2523). No other pre-requisite is necessary or is called for.

In other words, a non-resident who may be actually and notoriously in the State four-fifths of his time (perhaps in business here every day) may be served by publication, without any attempt to serve him personally within the State. Nay, it is not altogether clear that a personal service upon a non-resident within the State gives jurisdiction. There is no warrant for a personal service (or by leaving a copy, etc.) within the State upon a non-resident at all, except in section 2520. Except where special provision is otherwise made by law, service of a citation within the State must be made * * * by delivering a copy thereof to the person to be served, or by leaving a copy at his residence, or the place where he sojourns," etc.

Reading and comparing the various provisions upon the subject, it would seem as if only residents were to be served within the State, and non-residents only by publication, or without the State.

In his note to section 2525, Mr. Throop says: "The new system * ** in cases where personal service cannot be made within the state * * corresponds, in substance and mode of expression, to the system established in like cases for the courts of record of general jurisdiction, so that the same rule and adjudicatious will be applicable to each."

It would seem that in this instance Mr. Throop is mistaken.

The ends of justice would be better subserved if publications of all original process and the necessity of applications therefor were confined to cases of unknown parties, or those whose actual residence or whereabouts could not be reasonably ascertained.

The former practice in Surrogates' Courts permitted a personal service without the State without previous order or direction therefor, and it worked satisfactorily. The object of an authorized publication of original process against an absent party is to notify such party of an action or proceeding affecting him and his rights.

Practically not one man in twenty advertised against ever sees or hears of the published summons or citation, though the mailed copy is usually received. Where the actual whereabouts of a party is known, a personal service upon him anywhere in the world (together with a mailed copy) with a sufficiently ex

SUPREME COURT OF COLORADO, DEC. 1883.

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 neighbor.

An ordinary railway is a private enterprise, for private profit, 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.

APPEAL from District Court of Arapahoe county.

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

lant.

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.

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 no tangible existence, but which are necessary to the satisfactory use and enjoyment of that which is tangible. The people 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 denominated "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 ference 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 control 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 this end, and unless unreasonable charges 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 public 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 presumptions attach only so long as

to

are

the purpose of the change is to render the street more convenient and useful as a highway. When this object is abandoned, and the council direct or permit a change or use wholly foreign to the ordinary purposes of a highway, and when thereby adjacent property is actually damaged, the owner thereof is in this (State entitled to reasonable compensation for the in

jury.

The abutting owner may well be presumed to have taken into consideration the fact that the grade of the street might be raised or lowered; that pavement might be laid and bridges and culverts constructed; and that a street railroad even might be built and operated thereon; and it may fairly be presumed that in purchasing he anticipated and allowed for the possible or probable damages to result from these and similar changes, or that he signified his consent thereto, and thus deprived himself of any right to compensation therefor. But no such presumption, consent or estoppel applies to the use of the street by an ordinary railroad. The argument that such a railroad is an improved public highway, and therefore its construction and operation in the street is only an improved and appropriate use thereof, we do not regard as resting either upon correct principle or sound logic. street is designed for local convenience and use, and is dedicated thereto; it should be entirely unobstructive, save as temporary obstructions occur in the improvement thereof by the proper authorities or in its legitimate use by the public.

The

An ordinary railroad is not a local convenience; the city is but one of its termini; its cars do not stop at the beck of any one who may wish to ride, and do not commonly transport passengers from one point to another within the city; its ties and rails as generally laid are a permanent interference with the use of the street for ordinary vehicles; the smoke and dust, interruption and noise produced by operating its trains are a perpetual annoyance, and the danger a constant menace, in the occupation and enjoyment thereof for the usual purposes. We cannot escape the conclusion that such a railroad is an additional burden or servitude not comprehended within the easement for an ordinary public street or highway-a burden or servitude which the abutting owner cannot be presumed to have anticipated or consented to.

The railroad is a public benefit; it is generally of great advantage to the town or city to or through which it is built and operated. And for any injury or annoyance occasioned thereby which an adjoining owner shares in common with the general public, he ought not to recover; but for those damages which are peculiar to him, which affect his property and impair its value, without injuring that of his neighbor, he ought in justice to receive compensation. We are aware that upon some of these questions the courts are by no means in accord. Our views conflict with the decisions of courts for whom we entertain the profoundest respect. But while this want of harmony is to be regretted, it cannot be avoided, for agreement with all the able decisions is impossible. No attempt has been made to review in this opinion the cases; the task would be too long and laborious; we have not stated exhaustively the reasons controlling the views adopted upon this branch of the case, nor shall we undertake to do so. There are however a few subjects and decisions which we feel called upon to more specifically consider.

A distinction has sometimes been made with reference to the fee of the highway. The doctrine is announced and supported by a strong preponderance of authority that if the fee of the street be in the public, or in the municipality for the use of the public, the Legislature may authorize it to be used for the construction and operation of a railroad, without compen.

sation to the adjoining property-owner, and against his wishes. And of course the Legislature may delegate to the municipal authorities power to grant the same privilege, with like immunity from liability to lot-owners along the street occupied. See the following works and the cases cited therein: 2 Dill. Mun. Corp. (3d ed.) § 702; Mills Em. Dom., § 203; Cooley Const Lim. (5th ed.) 687. We are not, as may at first seem, ignoring this doctrine, or necessarily denying its correctness under the law prevailing where it has been declared. A careful examination shows that almost without exception those decisions, which consider the subject and deny a right to compensation for injury where the abutting owner does not also own the fee of the street, were rendered under Constitutions which require compensation only for the taking of private property, and a majority of those opinions are largely devoted to analyzing the word taken" and to defining its meaning as used in their respective Constitutions.

The Constitution of Colorado contains the following provision: "Private property shall not be taken or damaged for public or private use without just compensation." We believe that the framers of this instrument did not insert the words "or damaged" therein without a purpose. We cannot consent to the proposition that these words add nothing to the word "taken," also used, and that the provision would be just as broad without them. It is hardly necessary to invoke the course of construction which forbids that we shall consider them as either meaningless or merely cumulative.

The position taken in some of the cases is that if the adjoining owner has not the fee of the street, and the value of his property be diminished fifty per cent by the construction of the railroåd therein, he has no redress; while if he be the fortunate owner of this fee, he may recover, not only for the taking or appropiation of the street, but also for the interference with his easement, and the decrease occasioned in the value of his premises. Yet whether he own the fee or not, his rights in connection with the street, while it remains a street, are practically the same. His possession of this fee in no special way contributes to the use or enjoyment of his lot, and enables him to exercise no greater control over the street than he would have without it. This distinction as to the fee seems to rest upon the fact that in our case there is a wrongful incumbrance of this freehold, while in the other there is not. The actual injury inflicted is about the same in both, But while if the fee vests in the city there may be no wrongful incumbrance of his estate, in the sense of these cases, there is, under our Constitution at least, a damaging thereof for which he is entitled to compensation.

Constitutional provisions, where only the taking of private property is to be compensated, have frequently been held to include any "direct physical obstruction or injury to the abutting premises, even though there be no actual appropriation of the ground itself, as where by excavation or embankment water was caused to overflow the same-a kind or class of injur ies for which in the absence of constitutional or statutory enactment, a remedy existed at common law. Toledo, W. & W. Ry. Co. v. Morrison, 71 Ill. 616; Hooker v. New Haven & N. Co., 14 Conn. 146; Pumpelly v. Green Bay Co., 13 Wall. 166. We think this construction of the provision eminently reasonable and just. Accepting it as correct, we are forced to draw the inference that the words or damaged" with us were intended to reach still another class of injuries. To this class belong, in our judgment, those complained of in the case at bar. Upon this subject see Gottschalk V. C., B. & LQ. R. Co. 14 Neb. 389;

also Transportation Co. v. Chicago, 99 U. S. 635, and other cases hereinafter considered.

There has heretofore been no interpretation of our constitutional provision by this court with reference to damages, such as those complained of in the case before us.

The rights of the parties in Colorada Cent. R. v. Mollandin, 4 Col. 154, occurred prior to the adoption of that instrument; and for this reason, although the decision was rendered subsequent thereto, no mention was made or discussion had of the constitutional inhibition. But section 48 of chapter 18 of the Revised Statutes of 1868 provides that private property shall not be "taken or injuriously affected" without compensation. This statute remained in force till 1876; and it may be urged that the decision in the Mollandin case, supra, was governed thereby. We may admit that the words of the statute, "injuriously affected," are as comprehensive in meaning as the word "damaged" used in the Constitution, and yet not be concluded by the foregoing decision. The statute was not relied upon or discused in that case; not a word appears in the opinion itself nor in the briefs and arguments of counsel to show that it was even remotely considered. The opinion of a court is not decisive of a question not mentioned therein, although the same might, and perhaps should, have been passed upon. It is generally a party's privilege to waive a statutory right; and courts, particularly those of last resort, do not as a rule press upon litigants the benefit of a right or privilege which they have elected not to invoke or claim. Had the court been called upon for a construction of that statute, it is probable that a view would have been adopted similar to the one here announced as to our constitutional provision.

66

The sixty-eighth section of the Land Clauses Consolidation Act, 8 & 9 Vict., ch. 18, contains the following language: If any party shall be entitled to any compensation in respect of any land or any interest therein which shall have been taken for or injuriously affected by the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction," such compensation was to be determined as in the act provided. It will be observed that this section contains the words "taken" and "injuriously affected," used in our statute of 1868, and it is not improbable that these words were borrowed, either directly or indirectly, from sec. 68 aforesaid, or from some other English act using them in the same connection. The English courts, in interpreting this statute, have usually (not always) held that the words "injuriously affected" only allow compensation where a right of action would have existed at common law; yet in their application of this construction they have been extremely liberal, sometimes declaring that actionable at common law which we generally do not so consider.

In McCarthy v. Metropolitan Board of Works, L. R., 7 C. P. 508; 5 Eng. R. 256, the action was brought to recover for the depreciation in value occasioned to plaintiff's premises by the stopping up and destruction of a certain dock near the same. Plaintiff had no right or easement in the dock other than his right as one of the public;" "nor was there appurtenant or otherwise belonging to plaintiff's premises any easement or privilege in or to the dock." But by reason of their proximity thereto-there being only a narrow street between the buildings-were rendered valuable, either to sell or occupy; and by the destruction thereof they were permanently damaged and diminished in value. The court, per Willis, J., says: "Notwithstanding the striking differences of opinion which have been ex'pressed upon this subject, I cannot entertain the slightest doubt that what was done here was an injurious affecting of the plaintiff's property, which would

have given him a cause of action before the statute, and which entitles him to compensation under section 68." The plaintiff's recovery of $1,900 was sustained.

In East and West India Docks v. Gattke, 3 McN. & G.¡155,defendant professed to have incurred “great pecuniary loss and damage by reason of the construction of the plaintiff's railway in the immediate vicinity of his premises;" he claimed compensation under said act, on the ground that his property was injuriously affected. The lord chancellor declines to maintain an injunction permitting defendant's proceeding by suit to collect damages for the injury. His lordship suggests that under this statute a party is entitled to compensation where his lands are not "taken, used or directly interfered with," but where there is a "consequential" injury, resulting in the actual depreciation of the value thereof.

Beckett v. Midland Ry. Co., L. R., 3 C. P. 82, was a case where the highway, fifty feet wide in front of plaintiff's premises, was narrowed by means of a railroad embankment to thirty-three feet in width. Plaintiff claimed, among other things, that by the nar rowing of the road and the embankment the value of his property was reduced. Bovill, C. J., speaking of the property's being injuriously affected under said section 68, says: "I am also of opinion that but for the act of Parliament which authorized the making of the railway and the narrowing of the road, an action might have been maintained by the plaintiff for such injury and that he is entitled to claim compensation under the provisions of the act I have referred to;" and Willis, J., "I am of the same opinion. * * * It must be conceded that there was a damage to the owner of the house from the narrowing of the road in front of it. It is not worth so much to sell or let as it was before. I will not cite authorities upon a matter which is so plain."

The learned judge who delivers the opinion in Rigney v. City of Chicago, 102 Ill. 64, formulates the rule deducible from the foregoing and other cases in the following language: "If there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and [if] by reason of such disturbance he has sustained special damage with respect to his property in excess of that sustained by the public generally, the common law would, but for some legislative enactment, afford him redress. A recovery was sustained where the injury resulted from the construction, without negligence, through the public street, of a viaduct by the municipal authorities."

It is immaterial whether or not we declare the English rule thus formulated in Illinois sufficiently to recognize a right of action at common law in cases like this; for whether we so conclude and say with these English cases, interpreting words similar in meaning to those of our Constitution, that such language only gives a right to recover where it would have existed at common law, or whether we interpret the provision of our Constitution, as did Lord Westbury the English statute, as recognizing a new right of action, the result is the same: in either event parties are entitled to compensation for such injuries as are here complained

of.

Lord Westbury, in the case of Ricket v. Directors, etc., of Metropolitan Ry. Co., L. R., 2 Eng. & Ir. App. 175, questions the correctness of the above rule as applied to the English statute, in the following vigorous language: "If this view be correct, it follows that it is a mistake to lay down, as I find it in several cases, and in effect, in the judgment of four judges in this case, that the injury intended by the words 'injuriously affected' must be one for which, if there has been no

statute enabling the company to do the act, an action would have lain for the injury at common law;" and again he says: "Where therefore the general railway acts use the term injuriously affected,' the word 'injuuriously' does not mean 'wrongfully' or 'unlawfully,' nor does it imply that compensation is limited to cases where the act done is such as but for the powers given would be a tort at common law. The words mean 'damnously affected' only. * * * There is nothing in the statutes to warrant the position that there should be no compensation where at common law there would have been no right of action."

In Transportation Co. v. Chicago, 99 U. S. 635, the court, in speaking of the Constitution of Illinois of 1870 say: "It ordains that private property shall not be taken or damaged for public use without just compensation. This is an extension of the common provision for the protection of private property."

or

The following cases were decided under constitutional inhibitions similar to ours in this respect, and they assume without discussion that the words damaged," thus used, are the recognition by their respective Constitutions of a new right of recovery; they do not limit such right to cases where an action would, without the constitutional provision, have lain at com. mon law: Williams v. G. C. & S. F. Ry., 1 Denver L. J. 267; Graves v. G. C. & S. F. Ry., 1 Tex. L. Rev.; Johnson v. Parkersburg, 16 W. Va. 402; Moore v. City of Atlanta, 1 Denver L. J. 78; City of Atlanta v. Green, 67 Ga. 386; City of Elgin v. Eaton, 83 Ill. 535. The two Texas cases-i. e., those of Williams and Graves, supra-were brought to recover for injuries from the use of the street by a railroad. The others were against the cities for damages caused in grading the streets by their respective councils. The right to recover compensation was sustained in all. As will be observed, we do not go so far as some of these cases; that our position might not be misunderstood, we have, at the risk of being charged with obiter dictum, suggested that as at present advised, we think that for injuries caused by a reasonable change or improvement of the street by the council, in a careful manner, the abutting owner should not recover.

We now proceed to consider the liability of the city in this case for such compensation. The ordinance before us might perhaps be construed as in no way undertaking to compromise the rights of adjoining owners in cases like this to compensation, by simply granting a license on behalf of the public and the city government to occupy the street in question; we might possibly regard it as merely a declaration that both the city government and the general public consented to such use of the street, and would interpose no objection or obstacle thereto. To this extent the council had power to act; beyond this it could not go. Under such a view of the ordinance no one would contend for a moment that the action against the city could be maintained. On the other hand, if the ordinance in question was intended to confer upon the company a right to use the street for railroad purposes, without compensation to adjoining owners where permanent injury results from the use, it is in this respect an effort to authorize something expressly forbidden by the Constitution. The act of the council was a clear usurpation of power not possessed; the ordinance, in so far as it denies the right to compensation, is ultra vires and void. We find no statutory provision authorizing such action by the city council, and if such a statute existed it would also be void. But if the city council assume, or attempt to assume, powers not conferred, their action is not binding upon the corporation. 2 Dill. Mun. Corp., §§ 767, 768. 563, and cases cited. Certainly a municipal corporation cannot be

bound by the action of its council sanctioning, or attempting to sanction, disobedience of law.

The case of Stack v. City of East St. Louis, 85 111. 377, cited by counsel, might possibly be thought to recognize a right of recovery in a case like this, upon the doctrine of principal and agent. But we cannot realize the fitness of this application of the rule of agency. If the city council determine to make some change in a street for the benefit of the public, and proceed to do the work, the contractors or employees would be the city's agents; for injuries arising from their unskillfulness or negligence the municipality would unquestionably be liable. But the construction of an ordinary railroad is not, as we have found, an improvement of the street for the convenience and benefit of the local public. It is a private enterprise, for private profit. True, the city attaches certain conditions to the license granted, such as that the road-bed shall be upon a certain grade; that culverts shall be constructed for the gutters, and planks laid at the crossings, but otherwise the municipal authorities do not control the enterprise; whether we term the railroad company purely a private. or whether call it a quasi public corporation, the situation remains unchanged. In constructing and operating the road it is acting for itself, and not for the city. It is no more the city's agent than is the individual licensed by ordinance or resolution to engage in some legitimate private business requiring such license or authority. If the railroad company disobey the law in building or operating its road the city is no more responsible therefor than it would be for a tort of the private individual in the pursuit of his business aforesaid.

The remaining question to be passed upon refers to the measure of damages adopted by the court in admitting testimony and in charging the jury. Unlike actions for trespass to realty, where the plaintiff can only recover for the injury done up to the commencement of the suit, in suits of this kind a single recovery may be had from the whole damage to result from the act, the injury being continuing and permanent. After thorough examination of the cases we are of opinion that the following rule is just and equitable, and that it is sanctioned by the weight of authority when the action is against the proper party,aud the plaintiff is entitled to recover the measure of his compensationis 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 the railroad through the adjacent street. The jury of course must not consider any fluctuations in value resulting from other causes. No personal inconvenience or annoyance, no interference with his trade or business, no decrease in the rental value of his premises occasioned by the construction or operating of the railroad, and no temporary interruption or damage thereby constitutes the test. None of these things can enter into the question, except as they may appropriately aid in determining the actual depreciation in market value of the realty and improvements. If by reason of the proximity of the railroad thereto, plaintiff's property is in any way peculiarly benefited; that is, if he experiences a benefit therefrom not shared generally by the property-owners of the city, such benefit should be considered and the value thereof allowed in determining the amount of his compensation.

The judgment will be reversed and the cause remanded, with directions to the District Court to dismiss the action.

[That owner is entitled to compensation if he owns fee, see Railroad Laws of New York (ed. 1883), Appendix, page 9. As to right to lay tracks without compensating owner of adjoining lands, id. 21. When fee remains in owner, id. 19.-ED.]