number of cars are collected at the turntable, | 43 S. W. 700, this court held that under this cleaned and swept, and great and unneces- constitutional provision a recovery may be sary noises made, rendering it impossible for had in all cases where private property has the occupants of appellee's house to sleep. sustained a substantial damage by the makAppellee alleged that by reason of the above ing and using of an improvement public in her dwelling house had become unfit to live its character; that it is not required that the in, and the occupation and enjoyment of her damage shall be caused by a trespass or an property greatly injured, for which she actual physical invasion of the owner's land, prayed damages in the sum of $2,162. The but that he may recover if the construction allegations of the petition were denied by the and operation of the improvement are the answer. On the trial of the case the proof cause of consequential damage; or, as the was conflicting. The proof for appellee rule is otherwise stated, there may be a retended to show that the cars begin coming covery where "there has been some physical to the turntable about 5 o'clock in the morn- disturbance of a right, either public or priing; that at first five or six cars come; that vate, which the plaintiff enjoys in connection the widows are cleaned, and the cars swept with his property, and which gives to it an out, until the time for them to start; that additional value, and that by reason of such when they come on the turntable they shake disturbance he has sustained a special dameverything in the house; that when they age with respect to his property in excess of start off the turntable the wheels whirl that sustained by the public generally." around, making the fire fly, and shaking the Appellee is entitled to the free enjoyment of whole house; that the stuff swept out of the her property, including the use of the street cars kept the gutter full of filth all the time, in front of it, in common with the public. causing a great stench; that frequently a Her property derives a large part of its value car would not run off the turntable, and from the fact that it fronts on the street, and would have to make two or three runs; that she takes the benefit which she derives from the drivers of the cars talk and halloo and the proximity of the street to her property slam the windows up, and from the jarring with the burden of those inconveniences that of the cars and the noise of the drivers sleep result to her property from the use of the is impossible in the house after 5 o'clock in street for such purposes as city streets are the morning, or until past midnight. This fairly and reasonably used for. Thus, in proof also showed that there is considerable enjoying the advantages of the street, she odor from the oil stove kept under the turn- must put up with the dust and noise incidentable in winter. The proof for appellant, on tal to its use by the public; and, if the sleep the contrary, showed that this was only a of the occupants is disturbed by such uses of farge oil lamp kept under the turntable to the street as are incidental to city life, and prevent the grease on it from getting stiff, necessarily borne by the public generally in and that there were no disagreeable noises cities, she cannot complain. The proof on or fumes from the operation of the turn- her behalf in this case would tend to show table, and no injury done to the adjacent that appellee's property has been injured by property. The case was submitted to a jury, appellant's use of the street, and that the who returned a verdict for appellee in the damage she has sustained is in excess of that sum of $500, on which the court entered sustained by the public generally. The court judgment. To reverse this judgment the below instructed the jury as follows: "The street-railway company has appealed to this court instructs the jury that the defendant, the Louisville Railway Company, had the right to locate its turntable mentioned in the petition at the end of its tracks on Sixth street under the authority given it by the general council of the city, and they should find for the defendant, unless they shall believe from the evidence that the said turntable is so constructed or operated as to materially diminish the fair market value of the plaintiff's property described in the petition by making it less desirable as a residence, because of noises, unwholesome smells, or noxious gases made by the defendant in the operation of the said turntable." This instruction warranted the jury in finding for the appellee for all the damages she sustained from the construction and operation of the turntable if it materially diminished the fair market value of her property, without regard to whether the matters complained of were necessarily incidental to city life or in excess of the damage sustained by the public generally. In Fulton v. Short Route R. Transfer Co. 85 Ky. 640, 4 S. W. 332, and in the previous case of Cosby v. Owensboro & R. R. Co. 10 Bush, 294, this

court.

It is insisted for appellant that, conceding the truth of all the testimony for appellee, the court below should have peremptorily instructed the jury to find for it on the ground that the street railway is operated under proper legislative and municipal authority, is a necessary incident of city life and must have turntables in the streets at certain points in its line. We are referred to the case of Romer v. St. Paul City R. Co. 75 Minn. 211, 77 N. W. 825, decided by the supreme court of Minnesota, as sustaining this contention. We have examined this case with care, and it must be conceded that, under the principles there laid down, no recovery should be had here. But, without questioning the soundness of that decision, we do not think it applicable in this state, because of § 242 of our Constitution: "Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured, or de. stroyed by them." In the case of Henderson v. McClain, 19 Ky. L. Rep. 1450, 39 L. R. A. 349,

court recognized the rule that in cases of tracks." Wood, Railroads, 748, and authorthis character there are many things that ities there cited; 3 Elliott, Railroads, 1635. must be endured by the abutting property On this point Judge Dillon says: "The apowners, or such modes of transportation propriation of a street for a horse railway, must be abandoned; that these things are and used in the ordinary mode, is such a use damnum absque injuria, and for them no re- as falls within the purposes for which the covery can be had. In Willis v. Kentucky street was dedicated, or acquired under the & I. Bridge Co. 20 Ky. L. Rep. 475, 46 S. W. power of eminent domain." Dill. Mun. Corp. 488, this court said: "Whenever a railroad 3d ed. § 722. Judge Cooley says: "When company has been granted authority to use land is taken or dedicated for a town street, a street, it is accompanied with an implied it is unquestionably appropriated for all the qualification that its use shall not unreason- ordinary purposes of a town street; not ably interfere with and disturb the peaceful merely the purposes to which such streets and comfortable enjoyment of others in their were formerly applied, but those demanded property. Such a grant does not license the by new improvements and new wants. railroad company to use the street in dis- Among these purposes is the use for carregard of the private rights of others, and riages which run upon a grooved track; and with immunity for their invasion. Legisla- the preparation of important streets in large tive authority to so use a street does not de- cities for their use is not only a frequent prive a citizen of the right to maintain an necessity, which must be supposed to have action for damages for any special inconven- been contemplated, but is almost as much a ience and discomfort not experienced by the matter of course as the grading and paving." public at large." As to a railroad over a Cooley, Const. Lim. p. 556. This case only public street in a city, it is said in Baltimore followed and amplified the principles an& P. R. Co. v. Fifth Baptist Church, 108 U. nounced by this court in Louisville Bagging S. 331, 27 L. ed. 744, 2 Sup. Ct. Rep. 728: Mfg. Co. v. Central Pass. R. Co. 95 Ky. 50, "If, when used with reasonable care, it pro- 23 S. W. 592. The proof for appellant duces only that incidental inconvenience tended very strongly to show that there was which unavoidably follows the additional oc- no more noise or disturbance at the turncupation of the streets by its cars, with the table than is ordinarily incidental to the opnoises and disturbances necessarily attend-eration of an electric street-car line in a city, ing their use, no one can complain that he is incommoded. Whatever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damnum absque injuria. The private inconvenience in such case must be suffered for the public accommodation." We think the language quoted states correctly the character of injury for which no action can be maintained. Speaking of the operation of street railways in cities, and the right of the abutting property owner to recover for the operation of such railways, this court, in the recent case of Ashland & C. Street R. Co. v. Faulkner, 21 Ky. L. Rep. 151, 43 L. R. A. 554, 45 S. W. 235, said: "They are but means of using the public streets to a greater advantage for the very purpose for which they were laid out, and are recognized as the best and cheapest mode yet devised of getting about in a city, and do not impose any new or additional burdens for which abutters are entitled to compensation, unless they be so constructed as to deprive the abutter of some easement, or in some way cause him special damage for which he is entitled to recover, as they do not hinder the use of the rest of the street for the public travel, and in but a very small degree obstruct travel on the part occupied by their 50 L. R. A.

a

and must be borne by the abutting property owners in connection with the benefits which they derive from the street railway and the other uses to which the highway is put. Under this evidence the court should have qualified the instruction quoted, and should have told the jury that appellee, as the owner of city property fronting on the street, must submit to all those noises, smells, and disturbances that are usual in city life, including the use of the highway by the street railway, in so far as they were reasonably incidental to the operation of a street railway in a city, and borne by the public generally; and that, so far as the injury complained of arose from these causes, there could be no recovery; but that she could recover for any substantial injury to her property arising from the location or operation of the turntable or cars that was caused by such noises, smells, and disturbances as were not fairly incidental to the usual operation of such a street railway, and borne by the property owners generally along the line.

The court below did not err in refusing to instruct the jury peremptorily to find for appellant, but for the reasons indicated the judgment is reversed, and cause remanded for a new trial and further proceedings not inconsistent with this opinion.

LOUISIANA SUPREME COURT.

In case the father of a minor daughter has disappeared and abandoned the matrimonial domicil, the mother is authorized. ized, under the law of Louisiana, to appear in court in her behalf, and assert her rights. The action of trespass is in its character and nature transitory, and follows the person of the owner, and has its situs at her domicil, and may be brought against the offender anywhere he may be found, whether a corporation or a natural person.

fully, falsely, and maliciously prosecuted, | Having made a statement of the cause of acwithout any probable cause or justification tion, and quoted the foregoing exception, our whatever, and greatly to their injury and opinion says: "For the purpose of the trial damage; that by law they are entitled to sue of the exception of misjoinder and improper for and recover, not only compensation for cumulation the capacity of Mrs. Williams to all the said losses and injuries sustained, sue individually and on behalf of her minor but also, in addition thereto, to recover ex- daughter must be admitted. This leaves to emplary and punitive damages therefor. be determined the plain question whether a The petitioner alleges: "That she was mar- cause of action arising in behalf of Mrs. ried in 1873, in the state of Mississippi, Williams, growing out of the tort of defendwhere she and her husband continuously re- ant, and a cause of action arising in behalf sided, and which is their exclusive matri- of her daughter, growing out of the same monial domicil; and her said husband is ab- tort, may be cumulated in one and the same sent from the state of Louisiana, with his suit. We think they may. For the purpose residence and domicil in the state of Mis- of the suit the mother is assimilated to the sissippi, which is also her domicil; and that character of tutrix of her daughter. Comas to their matrimonial relations as well as mon wrong is represented to have been intheir acquisitions and property rights they flicted on the two at one and the same time.” are subjected to and governed by the laws Inasmuch as that exception judicially avers of the state of Mississippi. That by the "that there are two distinct actions and delaws of said state she is separate in prop- mands prosecuted by and for two different erty from her said husband, with the sole plaintiffs, cumulated in the same petition. right and authority to administer sepa- and one or the other should be dismissed,” rately her own personal affairs, property the argument in favor of the theory that neirights, and acquisitions, and entitled to ac- ther of them can be maintained appears to quire, hold, use, and dispose of the same be somewhat illogical, in view of the fact free from the control or marital influence of that this court has already decided that both her said husband; with the right and capa- were correctly brought and properly cumucity to sue and be sued personally and with-lated in one petition, for the reason that out joinder or authority of her husband as the cause of each action was the same fault to all matters relating to or affecting her of the defendant, and the acts of the defendpersonal rights or property interests. That by the laws of said state the damage herein sued for and sustained by her arose and accrued to her separately, and not in whole or in part, to her husband. That the laws of her matrimonial domicil govern and control her right to separately sue for the damages herein claimed, which were sustained by her while in Louisiana." She further shows "that her said husband abandoned her in 1893, after six children were born of their marriage, and disappeared from the matrimonial domicil, and has since absented himself therefrom; that she is not now aware of the precise locality in Mississippi in which he may be found, and that by the laws of Louisiana she is entitled to exercise all the rights of her husband with respect to the education and administration of the property rights of their children; that by said law she, being now present in the state of Louisiana, is entitled to sue herein for her said daughter Florence, and to claim for her use and benefit the damages herein alleged. Wherefore she prays to be authorized by the court to institute this suit, and stand in judgment, and for judgment against said corporation for the sum of $10,000 in her own right, and for the further sum of $10,000 for the use and benefit of her daughter Florence." The foregoing petition was met in its incipiency by several exceptions.

In our previous opinion we examined and reversed the judgment of the district court sustaining the defendant's fourth exception, which is to the effect that "there is an improper and illegal joinder of parties plaintiff; that there are two distinct actions and demands presented by and for two different plaintiff's, cumulated in the same petition, and one or the other should be dismissed."

ant a common wrong to both mother and daughter. That exception in terms admits as much, because it is premised by the statement that, "if the above exceptions should be overruled, and the court hold that either or both of said causes of action or demands are properly brought, and by the proper party, the defendant pleads for further exception," etc.; and by that averment it distinctly bases said fourth exception upon the hypothesis that its preceding exceptions were untenable. If we are now to examine the preceding exceptions, and affirm the judgment of the district court sustaining thein and dismissing the plaintiff's suit, our present decree would, in effect, be in exact opposition to its prior judgment overruling the fourth exception, and maintaining the suit. In our view, for all practical purposes, such is the purport of the judgment appealed from. But, accepting the situation as it is now presented on the record before us, what are the legal questions for determination? First. "That the plaintiff has no right or interest in her own name to prosecute this suit and stand in judgment herein, under the laws of this state, and she cannot, by alleging that her husband's domicil is in another state, invoke the benefit of the laws of such state to the practical nullification of all laws of this state regulating the marital relations (of the spouses); (because) foreign laws are not permitted to be operative in this state when they are inconsistent with the general spirit and policy of our own laws on the subject-matter involved." Second. That the allegations of the plaintiff leave in doubt the present domicil of her husband; so that, if her theory be admitted to be possible, or correct in law, she does not allege with sufficient certainty