chasers; those purchasing after the construction of the road take with notice of the rights acquired by the company and of the injury to the property. As to other parties to the action, general rules of law prevail.2 If the plaintiff is the owner of two contiguous lots abutting on the street occupied, it is proper to assess the damages to both lots company's executing a proper bond conditioned to pay all damages awarded against it. Fouche v. Rome St. R. Co., 84 Ga. 233; McMahon v. St. Louis, etc., R. Co., 41 La. Ann. 827. See also Kavanagh v. Mobile, etc., R. Co., 78 Ga. 271; 32 Am. & Eng. R. Cas. 267; Patterson v. Chicago, etc., R. Co., 75 Ill. 588; Cairo, etc., R. Co. v. People, 92 Ill. 170; Georgia Southern, etc., R. Co. v. Ray, 84 Ga. 376; 43 Am. & Eng. R. Cas. 95 (injunction granted until performance of condition requiring compensation); Ross v. Georgia, etc., R. Co., 33 S. Car. 477; 46 Am. & Eng. R. Cas. 34. In Iowa the abutting owner may always enjoin the company, unless it has paid the compensation provided by statute, and this right to enjoin is not merged in an unpaid judgment for damages against the company. Harbach v. Des Moines, etc., R. Co., 80 Iowa 593; 43 Am. & Eng. R. Cas. 115. 1. Right of Subsequent Purchaser to Damages.-Dixon v. Baltimore, etc., R. Co., Mackey (D. C.) 78; 3 Am. & Eng. R. Cas. 201; Merchants' Union Barb Wire Co. v. Chicago, etc., R. Co., 70 Iowa 105; 43 Am. & Eng. R. Cas. 121; Pratt v. Des Moines, etc., R. Co., 72 Iowa 249; 32 Am. & Eng. R. Cas. 236 (subsequent purchasers are charged with notice of rights of the railroad company); Lewis v. Wilmington, etc., R. Co., 11 Rich. (S. Car.) 91; Rand v. Townshend, 26 Vt. 670; Mills on Em. Dom., § 66; Redfield on Railroads 350. Compare the doctrine in New York, supra, this title, Elevated Railroads; In New York. There is no reason, however, to prevent the landowner from making a valid assignment of his claim for damages. Pratt v. Des Moines, etc., R. Co., 72 Iowa 249; 32 Am. & Eng. R. Cas. 236. The abutting owner's right to maintain the action is not affected by the fact that he parted with the title to the land after the institution of the action. Carl v. Sheboygan, etc., R. Co., 46 Wis. 629. Future Damage.-In Merchants' Union Barb Wire Co. Chicago, etc., R. Co., 70 Iowa 109, the occupation of a street by a railway company without making compensation to owners of abutting property, as provided by statute, was declared to be a continuing trespass and nuisance, for which any owner of a lot might recover; and if no recovery was had by the lot owner for the trespass and nuisance which would compensate for the future and continuous occupancy of the street by the railroad, his grantee could maintain an action for any injury he sustained thereby. But see Pratt v. Des Moines, etc., Ry. Co., 72 Iowa 249; 32 Am. & Eng. Ř. Cas. 236. 2. See generally, PARTIES TO AcTIONS, vol. 17, p. 470; EMINENT DoMAIN, vol. 6, p. 608. Heirs or Devisees as Parties.—The cause of action lies in favor of the party owning the property at the time the injury is committed. See generally su pra, this title, Elevated Railroads; In New York. Therefore where a company sets stakes for the construction of its road in a street and the abutting owner dies before any further steps are taken, an action for consequential damages is properly brought in the name of the widow and heirs of the deceased proprietor and not in the name of the personal representatives, the mere setting of the construction stakes not being an injury to the abutting property. Pennsylvania, etc., R. Co. v. Ziemer, 124 Pa. St. 560. See also Griswold v. Metropolitan El. R. Co., 122 N. Y. 102. Misjoinder of Parties-Application for Injunction.-Where the fee of the street to the center is in the owners of abutting property, the interest of each owner in the same is separate and individual, and a complaint in which several proprietors are joined as parties' plaintiff and which seeks to enjoin the construction of the railroad on the street on the ground that it has not legally acquired the right to do so nor made compensation therefor, is demurrable for misjoinder of parties' plaintiff. Fogg v. Nevada, etc., R. Co., 20 Nev. 429: 43 Am. & Eng. R. Cas. 105. The better doctrine seems to be, however, that proprietors of lands abutting on the street together, although they may not have been so used by the owner in connection with each other that they would be considered one tract in ordinary condemnation proceedings. In one jurisdiction this rule has been carried so far as to make a recovery for damages to one lot abutting on the street a bar to an action for similar damages to another lot on the same street, when the lots were the property of the same party but not contiguous.2 Where a railroad obstructs a private way the owner has a cause of action against the company. It seems, however, where the statute prescribes a specific penalty for the obstruction of a road or private way by a railroad, the owner cannot maintain an ordinary action of trespass, but must pursue the statutory remedy.3 The fact that the abutting owner was a member of the city council and voted for the grant to the company of the right to use the streets, does not estop him from maintaining his action for damages to his property. So, where the plaintiff contracted with the company to procure for it a right of way through the city streets, his contract must be construed as relating to the securing of the consent of the local authorities and not of immunity from liability for damages to property holders. may be joined as parties' plaintiff in a suit to restrain a railroad company from laying its tracks in the street without first making compensation. Taylor v. Bay City, St. R. Co., 80 Mich. 77; 43 Am. & Eng. R. Cas. 335. Action by Holder of Equitable Title.In an action for damages the holder of the legal title should always be joined as a party plaintiff; if, however, no -objection is made for non-joinder the holder of the equitable title may recover damages to his estate. Hastings, etc., R. Co. v. Ingalls, 15 Neb. 123; 20 Am. & Eng. R. Cas. 60. 1. Where Plaintiff Owns Two Lots Damages for Both Recoverable in a Single Action.-Lamm v. Chicago, etc., R. Co., 45 Minn. 71; 46 Am. & Eng. R. Cas. 42; Atchison, etc., R. Co. v. Boerner (Neb.), 51 N. W. 842; EMINENT DOMAIN, Vol. 6, p. 577. 2. Beronio . Southern Pac. R. Co., 86 Cal. 415; 46 Am. & Eng. R. Cas. 66; 21 Am. St. Rep. 57. In this case it was said: "The fact that it (the railroad) damaged two lots belonging to the same man at the same time, and by the same means, no more created two causes of action than if two horses belonging to the same man had been killed by a single collision with a locomotive." See also Brammenburgh v. Indianapolis, etc., R. Co., 13 Ind. 103; 74 Am. Dec. 250. And in such case the lot owner cannot recover for the continued operation of the railroad after the judgment in the former action, if the evidence shows no damage accruing after that date. Beronio v. Southern Pac. R. Co., 86 Cal. 415; 46 Am. & Eng. R. Cas. 66; 21 Am. St. Rep. 57. 3. Obstruction of Private Ways.-Ross v. Georgia, etc., R. Co., 33 S. Car. 477; 46 Am. & Eng. R. Cas. 34; Railroad Com'rs v. Columbia, etc., R. Co., 26 S. Car. 353; 30 Am. & Eng. R. Cas. 177; Kansas City, etc., R. Co. v. Farrell, 76 Mo. 183. See also Presbrey v. Old Colony R. Co., 103 Mass. 1 (one cannot have private way over his own land); Clark v. Boston, etc., R. Co., 24 N. H. 114; Kimball v. Cochecho R. Co., 27 N. H. 448; 59 Am. Dec. 387; Greenwood v. Wilton R. Co., 23 N. H. 261. Where the plaintiff's allegation is that the way is so entirely obstructed that he cannot pass, and the proof shows only a partial obstruction, so that he had still ample room for passage, there is a fatal variance and a non-suit should be ordered on motion by defendant. Ross v. Georgia, etc., R. Co., 33 S. Car. 477; 46 Am. & Eng. R. Cas. 34. See generally, PRIVATE WAYS, vol. 19, p. 95. 4. Estoppel.-Lamm v. Chicago, etc., R. Co., 45 Minn. 71; 46 Am. & Eng. R. Cas. 42. 5. Rosenthal v. Taylor, etc., R. Co1, The abutting owner cannot be required to initiate the proceedings to assess the value of the easements or other property to be appropriated; it is the duty of the railroad company to ascertain the values and to pay over compensation for all property rights appropriated by it, and the landowner may compel it to have such assessment made before it commences the construction of its road upon the street.1 Nor can he be required or allowed to enter upon the street and make repairs or changes in order to lessen the injury to his property and so decrease the amount of damage.2 Where the statute provides a rule of compensation, its provisions are to be followed as to the method of assessing the damages.3 The abutting owner may, however, maintain an ordinary action at law for damages sustained from trespass or other illegal acts committed prior to the assessment.4 Where the railroad company occupies a street or highway without due authority, or exercises its rights in respect thereto in a negligent or improper manner, so as to amount to a public nuisance, the remedy is by indictment as in the case of nuisances by private individuals.5 79 Tex. 325; 46 Am. & Eng. R. Cas. Lawrence R. Co. v. Williams, 35 Ohio 52, note. St. 168. 1. Company's Duty to Have Damages Assessed.-Cox v. Louisville, etc., R. Co., 48 Ind. 178; Dickson v. Baltimore, etc., R. Co., 3 MacArthur (D. C.) 862; Parker v. East Tennessee, etc., R. Co., 13 Lea (Tenn.) 669; Mulholland v. Des Moines, etc., R. Co., 60 Iowa 640. Compare, however, Spencer v. Point Pleasant R. Co., 23 W. Va. 406; 20 Am. & Eng. R. Cas. 125. 2. Central Branch, etc., R. Co. v. Andrews, 26 Kan. 702; 5 Am. & Eng. R. Cas. 370. 3. Statutory Method Must be Pursued. -Ford v. Chicago, etc., R. Co., 14 Wis. 617; 80 Am. Dec. 791. In this case it is said: "It seems that the past damages, or those occasioned by the trespass, might have been assessed by the court (Williams v. New York Cent. R. Co., 16 N. Y. 97); or the judge might perhaps have ordered a jury for that purpose; but the permanent damages, or those which would accrue to the plaintiff by the continued use of the land by the company, can only be ascertained in the manner prescribed by the statute." See also EMINENT DOMAIN, vol. 6, p. 604. In Ohio the landowner having the fee of the street may proceed under section 12 of act of 1872 (69 Ohio Laws 95) to compel the railroad company to condemn a right of way over the street. The statutory method of assessing damages in condemning a right of way does not apply, however, where property is not taken, but is merely damaged. Burlington, etc., R. Co. v. Řeinhackle, 15 Neb. 279; 14 Am. & Eng. R. Cas. 169; 48 Am. Rep. 342. In Iowa, where the statute provides for compensation, the abutting owner cannot institute proceedings for the assessment of damages; the only method of having the damages assessed at his own instance is by a proceeding for judgment. Harbach v. Des Moines, etc.. R. Co., 80 Iowa 593; 43 Am. & Eng. R. Cas. 117; Mulholland v. Des Moines, etc., R. Co., 60 Iowa 740; 10 Am. & Eng. R. Cas. 99; Daniels v. Chicago, etc., R. Co., 35 Iowa 135; 14 Am. Rep. 490. Compare Donald v. St. Louis, etc., R. Co., 52 lowa 411. The statutory method must be pursued; therefore the plaintiff cannot have a sheriff's jury to assess the damages in the mode prescribed for a condemnation of a right of way. Stough . Chicago, etc., R. Co., 71 Iowa 641; 30 Am. & Eng. R. Cas. 397; Mulholland . Des Moines, etc., R. Co., 60 Iowa 740; 10 Am. & Eng. R. Cas. 99. 4. Drady v. Des Moines, etc., R. Co., 57 Iowa 393; 14 Am. & Eng. R. Cas. 131. 5. Remedy by Indictment. - See generally CORPORATIONS, vol. 4, p. 267; RAILROADS, vol. 19, p. 926. Am. St. Rep. 395; Pittsburgh, etc., R. Unlawful Occupation of Streets-Con- 1137 |