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an action of much the same character as the present. It was an action of trespass, for damage to the premises of an adjoining land owner by the construction and operation of a draw railroad bridge across the Chicago river, on which plaintiff's property abutted, and which was used as dock property. After the bridge was constructed and had been in operation for considerable time, Maher, who was the owner when the bridge was built, sold tbe premises to the plaintiff in the suit, who was his wife. The same question was presented here as here, whether the plaintiff might recover for damages she had sustained by the continuance of the obstruction since she purchased. The solution of that question was found by the court in the determination that the character of the cause of injury was such, from its permanency, that one recovery would be a bar of all future actions growing out of the erection of the structure; that Maher, the original owner, might have sued for and recovered all the damages which were sustained by the property from the erection, whether at the time or in the future; that that being true, the right of action was in him for a recovery of all damages that were, or might be, caused by the structure, and, as that rigbt could not be transferred to his grantee, the plaintiff, there was in her no right of recovery. The distinction which appellee's counsel draws in that case, that it was one of trespass, some piles in the protection of the bridge having been actually driven in Maber's land, does not make a satisfactory discrimination. There is no significance in that action having been one of trespass, and not case, as our statute has abolished all distinctions between the actions of trespass and trespass on the case. The decision was not rested upon the point of that act of trespass committed being the only cause of action, but upon the permanent character of the structure as giving a right of recovery once for all; and the continuance of the obstruction since the purchase by the plaintiff was urged as ground of recovery in the case, which was met by the court in the manner above stated.

If the above doctrine as to entireness of recovery in one action, where the cause of injury is of a permanent kind, is to be admitted, it should apply peculiarly in this character of case. The cause of damage here is not a nuisance proper.

A railroad track laid upon a street of a city by authority of law, properly constructed and operated in a skillful and careful manner, is not in law a cuisance. Randle v. Pacific R. R., 65 Mo. 332; Danville Ry. Co. v. Com., 73 Pa. 38. In Illinois Cent. Ry. Co. v Grabill, above cited, it was said: * There is no complaint in the declaration of annoyance by the running of engines, the escape of steam, or otherwise, near her (plaintiff's) premises. Such consequences of the construction and use of railroads must be borne by all living near them, and without hope of redress, for they are inseparable from the purposes and objects of such

structures." And see Moses v. Ft. Wayne & C. R. R. Co., 21 Ill. 516.

There is no complaint here that the railroad is · uot properly constructed, or tbat It was not operated in a skillful and careful manner. It belongs to the idea of a nuisance that it is abatable. In the original actions, assize of nuisance and quod permittat prosterners, the former being brought against the one who levied the nuisance, and the latter against the allenee of him who levied the nuisance, the judgment thereon, besides damages for the temporary loss sustained, was for an abatement of the nuisance. These actions finally went into disuse, and the action on the case became the remedy, and a party injured by a private nuisance might bring his action toties quoties, until the obstinacy of the party maintaining such nuisance should be overcome by repeated recoveries against him and the nuisance be abated. 3 Bl. Comm. 222. But a railroad, or the operation of it, is not to be abated. It is built for the accommodation of the public. This is the object which justifies the exercise of the power of eminent domain, and the public welfare deinands that there should not be discontiuuance of the operafion of a railroad. Thus, there is not in such case the same reason as exists in cases of ordinary private nuisance for allowance of bringing actions as injury is done, which, as Blackstone says, will haye the same effect as assize of nuisance, or quod permittat, “ unless a man has a very obstinate as well as ill-patured neighbor, who had rather continue to pay damages than remove the nuisance."

For the class of injuries here sued for, there was no remedy, as we understand, previous to the constitution of 1870. The constitution of 1848 provided only tbat private property should not be taken for public use without just compensation. The provision for the first time was incorporated in the constitution of 1870 that “private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law." Before the adoption of the latter constitution where there was land taken for public use, there was provision for compensation. But where there was other disconnected land not touched by the improvement, but damaged merely, as complained of in this case, no compensation was provided. To meet this want, the clause of the constitution, restrictive of the exercise of the power of eminent domain, provides that private property shall not be taken or damaged for public use without just compensation We think it to be within the true intent and meaning of this provision as to damage that there should be but one proceeding for recovery of damage, in which there should be recovery for the entire damage, past, present and future; that it should be similarly regarded, in this respect, as the provision in regard to the taking of the property, where there is but one proceeding, and an assessment of compensation and damages once for all. The two provisions are coupled together,

and are both in restriction of the exercise of the power of eminent domain.

In respect to the awarding of compensation for the taking of private property for public use, Mills, in his work on Eminent Domain, section 216, says: “The appraisement embraces all past, present, and future damages which the improvement may thereafter reasonably produce.” Had the railroad track in this case been laid over a portion of one of these lots, then, in the condemnation proceeding for the taking of such portion, compensation would have been assessed for the value of the portion thus taken, and for the damage to the residue of the lot not taken. Such assessment would have embraced all future damage. As well here, in this case of no taking of land, might all the damages, past and future, from the operation of the railroad, be assessed as they might be to the remainder, in such supposed case of the taking of a part of the piece of land. If there might be successive recoveries from time to time of the constantly recurring damages, then, as was said in the Grabill case, “a similar recovery might be had at every term of the court, and, in this shape, the plaintiff might recover ten-fold the value of the property.” We do not think that this constitutional provision intended any such result, -that the just compensation given for the damaging of land might be greater than that for the taking of the land.

The just compensation to be made for damage to land was, in our opinion, intended as an indemnity, not for successive, constantly accruing damages, as they may afterwards be suffered, but for all the damage the land owner may suffer from all the future consequences of the careful and prudent operation of a railroad; it being the immediate damage done to the land-owner's es ate by changing its permanent condition, and impairing its present value. See Heard v. Middlesex Canal Co., 5 Metc. 81. The action for damage may be regarded as in the nature of one kind of condemnation proceeding. Upon this point of estimation of damages it was said, in the Maher case, that the structure being permanent in its character, “it could be determined with a reasonable degree of certainty how much it depreciated the value of the land, as a permanent structurehow much less it was worth after the erection of the structure than before. This measure of damages is recognized in the cases above cited from Bush, and in Chicago & I. R. Co. v. Baker, 78 11. 316, and Chicago & P. R. Co. v. Stein, 75 Ill. 41; and also in Powers v. City of Council Bluffs, supra, a case of damage to premises resulting from the improper construction of a ditch, where the court say: “The plaintiff's damage was susceptible of immediate estimation. No lapse of time was necessary to develop it.

It was the difference between the value of his lots as they would have been if the ditch had been properly constructed, and the value of them as they were, with the ditch as it was.” Page 657. And

on page 650 it was said: “If the cause of the injury is permanent, the damage can be forseen and estimated.” With so much of certainty, can the benefits or damages to real property, which will result from the coustruction of a railroad, be foreseen-that the mere location of the line of a railroad has an immediate effect upon the value of all real property in the vicinity, in enhancing or depreciating it? As all damages, then, which will be sustained as the necessary result of the operation of the road, can be immediately estimated at the time of the construction and putting in operation of a railroad, from the effect on the value of the land to be damaged, it would seem to answer all just purpose of the land owner to allow but one action, in which there might be recovery for all damages. The allowance of successive actions for damage, as it should occur from day to day, as new damage, would seem to serve but the purpose of harassing and the wasting of means in expenses of litigation. The law does not favor the multiplying of actions.

A further view is that the plaintiff purchased the property as it was with its surroundings. The railroad was there and in operation, and plaintiff bought the property with the disadvantage of the railroad. The railroad must be presumed to have decreased the market value of the property from what it would have been without the road, and it is to be taken that plaintiff paid but this decreased value for the property; so that, in effect, he has been allowed for all these damages, resulting necessarily from the operation of the railroad, in the reduced price which, on that account, he paid for the property, and for him now to recover for such damages in this action would be gettig for himself a double allowance for the same thingthese damages.

The conclusion is that, as the former owner could have sued and recovered for the depreciation in the value of the property caused by the railroad, the right of action was in him for a recovery of all damages that were or might be caused in the operation of the railroad, and that there is no right of recovery in his alienee, the appellee. It follows that there was error in refusing the above proposition of law, and the judgment will be reversed, and the cause remanded.

DICKEY, J.: I cannot concur in the views here expressed. I do not think our laws give to railroad companies a right by prescription in five years, without payment of compensation. If possible, I will prepare an opinion expressive of my views of this case.

The appellee thereupon filed a petition for rehearing, which was overruled, and, October 5, 1886, Scholfield, J., handed down the following opinion in the judgment of the court as set out above in the opinion of Sheldon, C. J.:

SCHOLFIELD, J.: As I understand this record, I concur in the judgment rendered, and I also concur, in the main, in the reasoning of the opinion by Mr. Justice Sheldon. To avoid misapprehension,

however, I prefer to state in my own way, briefly, the grounds on which my couclusion is based. A railroad in the streets of a city, when not authorized by law, is a nuisance per se; and hence there may, in such cases, be recoveries by those whose property is injured thereby, from time to time, until it shall be abated. But, before the adoption of our present constitution, it was held that, where there was legislative authority, a city council might authorize the location, construction, and operation of railroads in the streets of cities, and there could be no recovery by adjacent property holders for injuries sustained in consequence of their location, or of their construction, or of their operation in the usual and ordinary manner of constructing or operating railroads, that all damages thus arising were damnum absque injuria. Moses v. Pittsburgh, Ft. W. & C. R. Co., 21 ni. 522 et seq. The only clause in our present constitution affecting the question is that which provides that “private property shall not be damaged for public use without just compensation.” This court held, in Stetson v. Chicago & E. R. Co., 75 [ll. 74, (and the ruling has since been followed in kindred cases,) that it is not indispensable to the right to construct and operate a railroad in the streets of a city that the damages occasioned thereby to adjacent property holders shall have been previously ascertained and paid; in other words, that a railroad may be lawfully constructed and operated in the streets of a city, notwithstanding it shall cause injuries to adjacent property holders, the damages resulting from which shall not have been previously ascertained and paid.

It is sufficiently accurate to say that this railroad is permanent. The company is authorized, by its charter and by an ordinance of the city council, to locate and construct its road in the street. The right to locate and construct a railroad implies the right to operate it in the usual and ordinary manner, and, wbile the constitution requires that damages arising from injuries thereby occasioned shall be compensated, yet, according to the doctrine of the Stetson case, such injuries are not in the nature of a nuisance, for which the railroad can be abated, but are rather in the nature of a condition subsequent. It must result from the railroad being lawfully constructed in the street and from the company having the implied right to

and

operate it railroads are ordinarily used and operated, that the railroad company has the further necessarily incidental right to injure adjacent property in the manner and to the extent that such ordinary use and operation will necessarily injure it, subject to the right of the owner to have compensation made therefor. And the railroad being permanent, the injury must be equally permanent, affecting the property from the time the road is constructed; and a right of action therefor then accrues, on the authority of the cases referred to in the opinion of Mr. Justice Sheldon, to recover, once for all, the damages resulting

use

as

from the injuries sustained to the property. And it is manifestly upon this assumptiox that the general assembly have provided in the eminent domain act for the compensation, once for all, of such damages. The authority to lay tracks in the streets measures the extent of the contemplated probable use; and, on the question of damages to adjacent property, it is therefore to be assumed that the tracks authorized to be laid

may be used to the full measure of their capacity; and so, at once and ever after, the character and degree of damages sustained by the adjacent property holder is patent to all.

I concede that if, after the road is constructed, authority be given by the city council, and new tracks shall be laid which were not within the authority conferred by the council when the road was constructed, or that if the tracks laid wben the road was constructed shall be subjected to a new and more burdensome use which was not within the authority conferred by the city council when the road was constructed, and adjacent property holders shall be injured by such new tracks, or such new and more burdensome use, they may recover for the damages resulting therefrom; and I also concede that the adjacent property holders may recover from time to time for damages resulting from willful or negligent acts as to which the company would not have been protected by its charter, and the license and authority of the city council to lay its tracks in the streets, before he adoption of the present constitution. But the vibration caused to appellee's property, the casting of smoke, soot, etc., upon it, here complained of, I understand result from the ordinarily prudent use and operation of the railroad, as such roads are in general used and operated. The injury for wbich damages are claimed, is that necessarily to be anticipated as resulting from the mere fact of the prudent construction and operation of a railroad in the streets of a populous city.

NOTE:-The constitutional provision in Illinois that parties shall be entitled to damages for injury to land by the operation of public works, such as railroads on other lands adjacent or abutting, is a limitation upon a common law right. The general rule is thus stated by the Supreme Court of Maine: “It is a fundamental maxim of the law that a man may sue his own land for lawful purposes as he pleases. He may make erections or excavations thereon to any extent whatever. Within his own limits he can control not only the face of the earth, but everything under it and over it." He may dig down his own land so near his neighbor, that the latter's house may be so endangered that its removal becomes necessary, and for this he is not responsible, provided the consequences to bis neighbors result from his own reasonable and lawsul use of his own land. So a proprietor may control the flow of mere surface water over his own land at his pleasure

1 Moorison v. Bucksport, etc. Co., 67 Me. 353. 2 Thurston y. Hancock, 12 Mass. 220, and cases cited.

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without obligation to any proprietor above or below.3 He may prevent such water coming upon his land from adjoining land,+ or retain it on his own land.5 And he may so dig for proper purposes on his own land as to cut off the sources of his neighbor's water.6

And,generally,it may be said, that if the use made by a proprietor of his own land is reasonable and lawful his neighbors cannot hold him responsible for disastrous consequences to them. Unless the use falls within the legal definition of a nuisance, the proprietor's right to do as he pleases with his own cannot be controverted. And as the operation of a railroad, even in the streets of a city is, if authorized by its charter, a lawful business; it follows that it cannot be regarded as a nuisance, and neither can it be so rendered by the jarring, noise, smell, smoke and soot, necessarily incident to it. A structure authorized by the legislature cannot be a public nuisance.8

If, therefore a railroad company has in due course of law secured the right of way over the streets of a city, its rights to the land covered by it is, for its purpuses, as absolute as if it owned the fee simple of the city; and when it has once satisfied the demands authorized by the constitution of the contiguous property holders its right to carry on its lawful business in a lawful manner is as absolute as that of any tradesman in the town.

It is true that there can be more than one taking of private property for public uses, and that every successive act by which the value of the property is further impaired is in contemplation of law a new “taking," yet when the proceeding for compensation is statutory, and in its terms contemplates the injuries to be suffered in the future and professes to include damages for such future injuries, an injury suffered after such compensation has been made or waived, can hardly in reason or in law re regarded as a fresh “taking.” It is equally true that one who continues a nuisance commits a new wrong, 10 and the principle would apply very fully in the case under consideration if it were conceded or established that the operation of a railroad was a nuisance at all.-[Ep. CEN. L. J.

1. ARBITRATION-Submission-Award.—Where, in

an action on contract to recover a judgment for a sum of money agreed to be paid to the plaintiff an. nually,and for a support during his life, the defendant pleads an award of arbitration, and the submis. sion provided that all matters of difference were submitted between them, it cannot be objected that an award made by them that the defendant should pay to the plaintiff the sum of $200 in five years, in equal payments, without interest, is not in accordance with the submission, and that the time of payment fixed by the arvitration is not within the terms of the power conferred on them. Donican v. Mulry, S. C. Iowa, Oct. 19, 1886; 29 N. W. Rep., 612.

"9

2. What May be Submitted-Contract-Disputed Boundary. - All controversies of a civil nature, including disputes concerning real estate, may be the subject of arbitration. Stigers 0. Stigers, 5 Kan. 652, referred to and disapproved. A dispute had long existed between the plaintiff and defendant in regard to the boundary line, running north and south, dividing two contingent tracts of land which they owned. The defendant claimed that a certain hedge was standing upon the true line, while tbe plaintiff claimed that it was three rods further east. A written agreement was finally entered into, establishing the boundary on the line claimed by the defendant. As a part of the contract the defendant agreed to pay the plaintiff for the strip of land lying between the established line and the one claimed by the plaintiff, which was ascertained to be two and one-half acres, the value thereof to be fixed by arbitration: Held, in an action on the agreement to recover the value of the land, that the mutual concessions of the parties in fixing the disputed boundary line, and the relinquishment by the plaintiff of bis claim to the disputed strip of land, is sufficient consideration to support the defendant's promise to pay the value of the strip, and that the contract is valid, and should be upheld. Finley v. Funk, S. C. Kans., Oct. 7, 1386; 12 Pac. Rep., 15.

3 Moorison v. Bucksport, etc. supra. 4 Bangor v. Lansil, 51 Me. 54.

5 Gannon v. Hargaden, 10 Allen 106; Rawstren v. Taylor, 11 Exch., 369; Flagg v. Worcester, 13 Gray 601; Bates v. Smith, 100 Mass. 181, 182; Rathke v. Gardner, 134 Mass. 14.

6 Chase v. Silverstone, 62 Me. 175.
7 Randle y. Pacitic Railroad, 65 Mo. 325.

8 Danville, etc. Co. v. Commonwealth, 73, Penn. St. 29, 38; Rex v. Pease, 4 Barn. & Ad. 17.

9 Rigney y, Chicago, 102 III. 64.

10 McDonough v. Gilman, 3 Allen 264; Nichols v. Boston, 38 Mass. 39.

WEEKLY DIGEST OF RECENT CASES.

3. CORPORATION-Dividends on Preferred Stock

Impaired Capital - Railroad Statute.- Where an act of the legislature allowed a railroad corpo. ration, whose finances were embarrassed by a large floating debt which it could not meet, either to pay the debt with the proceeds of second mortgage bonds to be thereafter issued, or to issue preferred stock for the purpose, by consent of a majority of the stockholders, and provided that the holders of such preferred stock should receive“ out of the net earnings ” of the company, annnually, a certain per cent. on said stock, arrearages for any year to be paid out of net earnings of subsequent years before paying anything on the common stock, and the company adopted the latter method, and issued preferred stock, held, that dividends on the preferred stock were payable from the net earnings of any year, notwithstanding an existing deficiency of nearly a quarter of a million dollars, and notwithstanding the provision of the general statute forbidding any corporation to declare a dividend while its capital is impaired, said deficiency having ex. isted prior to the act of the legislature. Cotting

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t. New York, etc. Co., S. C. Conn., July 20, 1886; 5 Atl. Rep., 851.

4. CRIMINAL LAW-Appeal-Evidence-New Trial

-Newly-Discovered Evidence.-Where the testimony offered by the State, when taken alone, is competent and sufficient to sustain the prosecution, a verdict which has been approved by the district court will not be set aside in the supreme court for insufficiency of the evidence. As a general rule, newly-discovered evidence, the purpose of which is to discredit a witness in the original trial, does not afford adequate ground for the granting of a pew trial. The declarations of a party other than the defendant which formed no part of the res gesta, although they may amount to an admission that he committed the offense charged against the defendant, are not admissible in evidence in behalf of the defendant, and an application for a new trial based on such evidence was properly refused. State v. Smith, S. C. Kans., Oct. 7. 1886; 11 Pac. Rep., 908.

have this day bargained, and do grant, bargain. sell, and confirm,” in an instrument, purporting to convey land, signed, sealed, acknowledged, and recorded, are adequate to pass the title, and a subsequent provision in the instrument binding the grantor in a penal sum to make a good and suffi. cient deed does not limit or qualify the apt words of conveyance. Such a provision is merely a covenant for further assurance. A grandchild cannot, after the lapse of more than twenty years from the attainment of his majority, bring a suit for partition of land against other grandchildren who have been in undisputed and adverse possession since the death of the common ancestor, for more than that length of time. Johnson v. Filson, S. C. III., Oct. 6, 1886; 8 N. E. Rep., 318.

5. Bigamy Indictment - First Marriage

Evidence-Admission --Reputation-Res GestIncreasing Punishment. — In a prosecution for bigamy it is not necessary to allege in the information or indictment the exact time and place of the first marriage. It is sufficient, in that respect, to allege and prove that the marriage relation existed between the accused and bis first wife at the time of the second marriage. In such a prosecution, the deliberate admissions of the defendant of a former marriage, coupled with cohabitation and repute, is evidence tending to prove an actual marriage, upon which a jury may convict. The declarations of the defendant, made in his own favor, respecting the first marriage, which formed no part of any statement or conversation called out by the State, and which were no part of the res gestæ, are inadmissible for the defense. The district court may, until the term ends, revise, correct, or increase a sentence which it has imposed upon a prisoner, where the original sentence has not been executed or put into operatlon. Statev. Hughes, S. C. Kans., Oct. 7, 1886; 12 Pac. Rep., 28.

8. -Recording Husband and Wife Home

stead.—The recording of a deed raises a presumption of delivery, to be explained or rebutted, however, by the intention of the party recording the same. Any act presumptively a delivery will not be a delivery if the intent to make it such is want. ing, or is expressly negatived by other acis or words of the grantor. Where the only act looking toward a delivery is the recording of the deed, the effect of such recording must be qualified, limited, and governed by the intention of the party recording, which intention is shown by what he said to the register of deeds when he left the instruments with him for record; and wbat he said to the reg. ister at the time is part of the res gestae and admis. sible in evidence to explain the character of his intent. Where a husband deeds the homestead to a third party, who simultaneously deeds it to the wife, the transaction in law is a simple conyeyance from the husband to the wise; in such case, the deed to such third person would not be void be. cause of the wife not joining in its execution. Where the wife after leaving her husband, who continued in possession of the land, sold the same to a third person who deeded it to her brother, it will be deemed a conveyance from a sister to her brother, the plaintiff, wbo under the circumstances was chargeable with notice of the title. Stevens v. Castel, S. C. Mich., Oct. 14, 1886; 2 W. Rep., 724.

6.

False Pretemses-- Practice.-On the trial of an indictment, where evidence has been given which directly tends to support the allegations of the indictment, the court may refuse to rule that there is no evidence to prove sucb allegations, or that there is a variance between the allegations and the proof. Although one cannot be convicted for false representations, upon a statement of his opinion as to the value of an article. yet he can for a false representation of what it is selling for. The offense of obtaining money by false pretenses is complete in a county in this State, where the rep. resentations were made by there sending a casbier's draft for the money to the defendant, at his request, to New York, by the hands of defendant's agen or by depositing the draft in the mail at his request, he having roceived the money on the draft in New York. Where the bill of exceptions purports to set out all the evidence, and there is no evidence therein of a material fact necessary to support a conviction, the exception to the indictment must be sustained. Commonwealth v. Wood, S. J. C.

Mass., Oct. 21, 1886; 3 N. Eng. Rep., 94. 7. Deed-Apt Words of Conveyance-Bond for Deed

-Further Assurance-Statute of LimitationsPartition-Adverse Possession.-The words, “ I

9. DOWER-At Common Law and by Statute

Estoppel.-Dower, at common law and under the statutes of Pennsylvania, is an estate in the land and not a mere lien. The act of March 29, 1832, charges the widow's dower on the land in partition proceedings; and the orphans' court cannot divest the dower, by decree or otherwise, unless the widow's consent is procured in such manner as to pass her estate. Her consent will not be implied from knowledge of the proceedings, and that the court had ordered a cash sale. Such knowledge will not operate as an estoppel and prevent her from recovering her dower, in an action of assumpsit brought against an assignee of the land. Evidence that the administrator's deed omits reference to dower, or that the whole of the purchase money was paid to the administrator or that the assignee of the land understood from his vendor or the scrivener that the land was clear from incumbrance, is inadmissisible, where the widow is not a party to these transactions. Diefenderfer v. Eschleman, S. C. Penn., Oct. 4, 1886; 4 Cent. Rep., 290.

Wife Joined in Mortgage-Title De. feated-Rights Restored.-- Whenever the title

10.

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