south rail of the main track. This was the whole injury complained of. It was not shown that the occupation of fourteen inches of the projecting ties will impose any additional burden upon the plaintiff's soil, nor that it will present any additional impairment or interference with his use of the street. The question is whether, under such circumstances, the plaintiff having for a valuable consideration given the release above set out, may now enjoin the company from occupying the south end of its ties in the manner above described. EFFECT OF THE In its general scope the release is of all that part of Tippecanoe and Eighth streets south of the centre line of the street first named. The final stipulation shows that it was the intent to confine the release to a right of way in the street, to be occupied by one track, as then located. This, of course, must have a reasonable construction. The track necessarily embraced the road-bed as prepared and used, with the ties and rails laid thereon. Until it appears that the laying of the proposed switch will in some way impose a burden on the plaintiff's soil which was not occupied by the track as it was located and used at the time the release was made, or that in some way obstructs or impairs the plaintiff's use of the street in a manner different from the obstruction occasioned by the main track, no right to an injunction is shown. It would be an unreasonably narrow construction of the grant above set out to hold that the occupation of one end of the ties upon which the main track rests, for purposes reasonably incident to the main track, would impose such an additional burden upon the bailiff's land in the street as to invoke the jurisdiction of the court to grant the extraordinary remedy of an injunction. Nothing appears in the record to indicate that the proposed occupation of the ties would in any manner interfere with the plaintiff's easement in the street. This is nowhere claimed. Since it appears that neither the road-bed, ties, nor main track are to be in any manner extended by the proposed switch, the record presents no case for injunctive relief. Judgment reversed, with costs. INDIANAPOLIS AND CUMBERLAND GRAVEL ROAD Co. v. BELT RAILWAY CO. (110 Indiana, 5.) Where a corporation, by an act of 1849, was granted a public highway for the purpose of constructing and maintaining thereon a plank road, but subsequently forfeited its rights in such highway, railroad companies which, by the same act, were given power to lay their tracks across the plank-road without compensation, upon such forfeiture, ceased to have any rights under that act, and can assert none as against a gravel road which is afterward maintained on the same highway by another corporation. Section 3903, R. S. 1881, conferring upon railroad companies the power to cross highways without compensation, has reference to ordinary highways, controlled by the public authorities and maintained by taxation, and does not embrace a highway which is used for gravel-road purposes by a private corporation under a grant from the board of county commissioners. A gravel-road company has property rights in a highway used by it, under a grant for gravel-road purposes, and where a railroad company lays its track across such road without the consent of the gravel road company, and without proceedings to condemn and the payment or tender of damages, the latter corporation has a right of action, and is entitled to at least nominal damages, and in such a case the maxim de minimis non curat lex will not apply. FROM the Marion superior court. A. C. Harris, W. H. Calkins, and H. W. Talbott for appellant. A. L. Roache, E. H. Lamme, S. Claypool and W. A. Ketcham for appellee. FACTS. ZOLLARS, J.-At the request of the parties, the jury returned a special verdict. We take from appellee's brief the following summary of the facts found and set out in the special verdict, viz.: "The road now owned by the appellant was originally constructed by the United States governinent, and by it granted to the State of Indiana. "The appellant corporation, in 1864, was organized under the general plank and gravel road law of the State. "The said road, then belonging to the State, was granted to appellant by the board of commissioners of Marion county, and it has ever since occupied, possessed, and used it as a toll gravel-road. "The appellee corporation was organized under the general railroad law of Indiana, in 1876, and was constructed immediately, building its track across the gravel road without previously obtaining the right to cross, either by license, purchase or condemnation. The Belt Road obtained a right of way from the owners of the fee on both sides of the gravel road, on one side by purchase, and on the other by condemnation. "The said railroad crossed at right angles; was built in a proper and workmanlike manner, so as to afford security for life and property. Immediately on its construction, the company restored the highway in a sufficient manner not to have unnecessarily impaired its usefulness, or injured its franchises, and so as not to interfere with the use of the same. "From 1877 to 1882 the tolls had diminished each year. The diminution was not in any way occasioned by the crossing of the Belt Railroad, but by other causes unconnected with the crossing, which are fully set forth." In addition to the above, so taken from appellee's brief, the jury also found, and incorporated into their special verdict, the further facts, that in 1849 the Legislature of the State incorporated the Central Plank Road Co., and gave to it the right to occupy and use, as a gravel road, that portion of the National Road between Indianapolis and the Hancock county line; that prior to 1864, by a proceeding on information in the nature of quo warranto, all of the rights and franchises of the Central Plank Road Co., in relation to said portion of the National Road, were forfeited. The special verdict closed as follows: "If, upon the foregoing facts, the law is with the defendant, we, the jury, find for the defendant; if, upon the foregoing facts, the law is with the plaintiff (appellant here), we, the jury, find for the plaintiff, and assess its damages at the sum of After the return of the special verdict, before the jury had been discharged, and while they were yet in the jury-box, appellant, by counsel, requested the court to instruct the jury that they must, in any event, assess nominal damages for the plaintiff. That the court refused, accepted the verdict over appellant's objection, and, over its objection and motion for a new trial, rendered judgment in favor of appellee for costs, taxed, as shown by the record, at two hundred and six dollars. It is charged in appellant's complaint, among other things, that without its consent, and unlawfully, the railroad company constructed its road across the gravel road; that by reason of such construction and the constant moving of trains at a high rate of speed, appellant has suffered loss, in the diminution of tolls, and that the value of its rights and franchises has been greatly lessened and impaired, to its damage, etc. It is contended by appellant's counsel that the facts found by CONTENTIONS. the jury show that its rights have been unlawfully invaded by the railroad company, and that, therefore, although no APPELLANT'S actual damages were found by the jury, nor facts upon which such damages might be predicated, it is entitled to nominal damages; and that, having such right, the court below should have instructed the jury to fill out their verdict by inserting damages, nominal in amount; and still further, that in refusing to so instruct the jury, and in rendering judgment for appellee, over appellant's objection and motion for a new trial, the court below committed such error as requires a reversal of the judgment. The first question for consideration is, did the railroad company, by laying its track across appellant's gravel road, invade any of its rights under the constitution and laws of the State. ROAD TO ACROSS GRAVEL ROAD. As found by the jury, the way upon which the gravel RIGHT OF RAILS road was constructed, was originally a National road. TRACK That road was ceded to the State by the general government. Subsequent to that, the State, through its Legislature, by a special act, incorporated the Central Plank Road Co., and gave to it certain powers and privileges. The 17th section of that act was as follows: "Section 17. This corporation is hereby empowered to take possession of, occupy, and use, for the purpose of constructing a plank road thereon, all that portion of road known as the 'National Road,' . . . lying between the eastern line of the county of Hancock and the western line of the county of Putnam; and all the rights and privileges heretofore belonging to the United States in regard to such part of said National Road, and which have been surrendered to the State of Indiana, be, and the same are hereby, transferred to and vested in the said company for the purposes contemplated in this act: Provided, That the president, directors, and company of the Terre Haute & Richmond R. Co., or any other railroad, shall have the right and power of locating and constructing said railroad across said plank road and of recrossing the same at such points as shall be convenient or necessary, doing no in!ury to the same more than is absolutely necessary." Local Laws 1849, p. 199. Under that statute there is no question that the Terre Haute and Richmond R. Co., or any other railroad company existing under the laws of the State, might have crossed the road of the Central Plank Road Co. without compensation. The act creating it conferred upon the plank road company whatever rights it had. Whatever rights it thus acquired in or to the National Road, it took subject to the rights of the railroad company named, or any other railroad company, to lay its track across the road. The right to use a portion of the National Road was a special grant to the particular plank road company, and to none other. The proviso, in the section of the act above set out, had reference to the special grant to the Central Plank Road Co., and operated as a limitation upon the rights granted. So far as that company was concerned the railroad companies were given the right to cross the road. The right to the railroad company was also given with reference to the Central Plank Road Co. alone. The act settled the rights of the plank road company and the railroad companies with reference to each other, and no further. The right thus conferred upon the railroad companies was not a general grant of right and authority, to be exercised as against whatever rights might thereafter, in a proper way, be conferred upon a subsequent and different corporation to occupy and use the National Road. When the Central Plank Road Co. ceased to have any rights in or to the National Road by virtue of the act of 1849, the railroad companies also lost their right under that act to cross the road. If, therefore, appellee had or has any right to cross appellant's gravel road without compensation, it is not by virtue of the special act of 1849, but by virtue of other statutes. In 1858 a judgment was rendered forfeiting all of the rights and franchises of the Central Plank Road Co. in and to that portion of the National Road now occupied by appellant, and that portion was declared to be a public highway. Central Plank Road Co. v. Hannaman, 22 Ind. 484. In 1864 appellant was incorporated as a gravel road company under the general laws of the State which were then in force. R. S. 1881, section 3624, et seq. One section of the law was and is as follows: "The directors of said company shall proceed to locate and lay out said road, and may locate the same over and upon any State or county road, or other public highway, with the consent of the board of county commissioners of the county, entered of record and granted upon such conditions as to such board may seem just and reasonable; and thereupon such State or county road or other public highway, or such portions thereof as may be so occupied or appropriated by said company, shall be and become the property of said company for the purpose of making and maintaining said road and the tollgates and toll-houses thereon. The board of county commissioners of the several counties of this State are hereby authorized to give their consent to the appropriation and occupation of any such State or county road or other public highway over and upon which any company may locate any such road." R. S. 1881, sec tion 3628. In pursuance of that statute, the board of commissioners of Marion county, on the 17th day of October, 1864, made an order finding that the National Road, formerly known as the "Central Plank Road," or so much thereof as lies between the eastern |