sation should be made, and this is now the prevailing rule. Greene. Railroad Co., 12 Abbott's New Cas. 124; People v. Law, 34 Barb. (N. Y.) 494; Presbyterian Society v. Auburn & Rochester R. Co. 3 Hill (N. Y.), 567; Hastings & Grand Island R. Co. v. Ingalls, 15 Neb. 123; Hinchman v. Patterson, 17 N. J. Eq. 75; Railroad Co. v. Schurmeier, 7 Wall. 272, 289; Terre Haute, etc., R. Co. v. Scott, 74 Ind. 29; s. c., 3 Am. & Eng. R. R. Cas. 208; Mollandin v. Union Pacific R. Co., 4 McCrary (U. S. C. C.), 290; Harrington v. St. Paul & Sioux City R. Co., 17 Minn. 215; Adams v. Hastings & Dakota R. Co., 18 Minn. 260; South Carolina R. Co. v. Steiner, 44 Ga. 546; Brown v. Duplesis, 14 La. Am. 842, and the erection of an elevated railway in a street is an appropriation of the property of adjoining owners for which they are entitled to compensation. Story v. New York Elevated R. Co., 7 Am. & Eng. R. R. Cas. 596, and note; s. c., 90 N. Y. 122; Pittsburgh Junction R. Co. v. McCutcheon, 7 Atl. Rep. 146; Lahr v. Metropolitan Elevated R. Co., 104 N. Y. 268; Drucker v. Manhattan R. Co., 30 Am. & Eng. R. R. Cas. 418.

But the use of a street by a street railroad is generally held to be not the appropriation of an additional easement for which compensation should be made. Attorney General v. Metropolitan R. Co., 125 Mass. 515; Mahady v. Bushwick R. Co., 14 Am. & Eng. R. R. Cas. 142; s. c., 94 N. Y. 148; Randall v. Jacksonville Street R. Co., 17 Am. & Eng. R. R. Cas. 184.

Measure of Damages. In determining the amount of compensation, the benefits which the owner receives in excess of those enjoyed by the community at large are always to be deducted from the whole amount of damages sustained. Symonds v. Cincinnati, 14 Ohio, 147; Holton v. Milwaukee, 31 Wis. 27; Pacific Railroad Co. v. Chrystal, 25 Mo. 544; Carpenter v. Landoff, 42 N. H. 218; Trinity College v. Hartford, 32 Conn. 478; Grafton v. Greenbrier R. Co. v. Foreman, 20 Am. & Eng. R. R. Cas. 215, and note; s. c., 24 W. Va. 662; Cooley, Const. Lim. 570.

Where an embankment was constructed in a street to prevent a river from overflowing the town, in determining the measure of damages, the court said: "Proof of general benefits resulting from the improvement to this property in common with other property in the city, was inadmissible, but whether this particular property was damaged within the meaning of the constitution depended upon whether it had received such material injury as rendered it less valuable to the owners, or less useful as a whole, than it would have been but for the embankment having been constructed as it is." City of Shawneetown v. Mason, 82 Ill. 337, 344.

But in some States, by constitutional or statutory provision, no deduction from the value of land taken is made on account of benefits to that which remains. Todd v. Kankakee R. Co., 78 Ill., 530; Koestender v. Peirce, 41 Iowa, 204; Deaton v. County of Polk, 9 Iowa, 596; Raleigh R. Co. v. Wicker, 74 N. C. 220; Chapman v. Oshkosh, etc., R. Co., 33 Wis. 629; Jacob v. Louisville, 9 Dana (Ky.), 114; Memphis v. Bolton, 9 Heisk (Tenn.), 508; 3 Sutherland on Damages, 456.

To the extent that property is depreciated in value, the owner is entitled to compensation without regard to the cause of such depreciation; and to show the loss of value evidence has been admitted of annoyance from trains, of danger of fire from locomotives, of difficulty of access and inconvenience in the use of the property, and of the noise, smoke, jarring of the ground, and increased dangers caused by the use of the railroad. Patterson v. Boom Co., 3 Dill. 465; Snyder v. Western Union R. Co., 25 Wis. 60; Matter of the Utica R. Co., 56 Barb. 464; Peoria, etc., R. Co. v. Sawyer, 71 Ill. 361; Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317; Florida Southern R. Co. v. Brown, 1 So. Rep. 512; Contra, Hammersmith & City R. v. Brand, L. R. 4 Eng. & Irish Appl. Cas. 171 McReynolds v. Baltimore &

Ohio R. Co., 106 Ill. 152; Atchison & Denver R. Co. v. Lyon, 24 Kan. 745; 5 Am. & Eng. R. R. Cas. 295.

In determining the depreciation of the property injured, the jury may consider its character, situation, present and probable use, and the nature and distance of the public use. 3 Sutherland on Dam. 437, and cases cited.

The increased cost of insurance and the decreased rental value resulting from the proper and prudent operation of the road are proper elements of damages. Wood R. Law, 906; Selma, etc., R. Co. v. Knapp, 42 Ala. N. S. 480.

In an action by an abutting property owner against a railway for appropriating a street, the measure of damages is the same as in condemnation proceedings. Grafton v. Baltimore, etc., R. Co., 17 Am. & Eng. R. R. Cas. 200.

In an action to recover for the injury caused by an elevated road, damages can be recovered on account of the gas, smoke, steam, dust, cinders, ashes, and other unwholesome substances emitted from the locomotives. Lahr v. Metropolitan Elevated R. Co., 104 N. Y. 268.

Interruption to business has been considered an element of damage, and the amount of damage was ascertained by proof of the probable, reasonable profits which might have been made had there been no interruption. St. Louis, etc., R. Co. v. Capps, 72 Ill. 188. But see Jacksonville & South-east

ern R. Co. v. Walsh, 14 Am. & Eng. R. R. Cas. 245; s. c., 106 Ill. 253.

And where an alley was occupied by a railroad the adjoining owner was held entitled to recover only for the loss of his special right to pass and repass over the alley. Central Branch Union Pacific R. Co. v. Andrews, 14 Am. & Eng. R. R. Cas. 248.

Constitutional Provisions-Taking-Damaging. Where the constitution secures compensation only for the taking of private property, the rule has been that imposing an additional burden on the street is not such a taking, and any consequential injury suffered by an abutting owner is damnum absque injuria. Rigney v. Chicago, 102 Ill. 64; Philadelphia v. Trenton R. Co., 6 Whart. 25; s. c., 36 Am. Dec. 202; Transportation Co. v. Chicago, 99 U. S. 635, 642.

But in Story v. New York Elevated R. Co., 90 N. Y. 122; s. c., 7 Am. & Eng. R. R. Cas. 596, in a very thoroughly considered opinion, it is said that using a street for an elevated road amounts to a taking for which compensation should be made, and such is now the rule in New York and several other States.

Where, as is now the case in a number of States, the constitution secures to the property owner compensation for property taken or damaged, payment must be made for substantial injuries resulting from the use of a street by a railway, and it is not required that the damage shall be caused by trespass or actual physical invasion of the owner's real estate. Gottschalk v. Chicago, Burlington & Quincy R. Co., 14 Am. & Eng. R. R. Cas. 157 (Neb.); Chicago & Western Indiana R. Co. v. Ayers, 14 Am. & Eng. R. R. Cas. 152; s. c., 106 Ill. 511. See, also, Spencer v. Point Pleasant, etc., R. Co., 20 Am. & Eng. R. R. Cas. 125; s. c., 23 W. Va. 407.

In Chicago & Western Indiana R. Co. v. Ayers, supra, under the constitutional provision that "private property shall not be taken or damaged for public use without just compensation;" the court says "that under this constitutional provision a recovery may be had in all cases where private property has sustained a substantial damage by the making and using an improvement that is public in its character; that it does not require that the damage shall be caused by a trespass or an actual physical invasion of the owner's real-estate, but if the construction and operation of the railroad or other improvement is the cause of the damage, though consequential, the party damaged may recover."

Immaterial Whether Abutting Owner has Fee or Easement in Street.A distinction has been made between those cases in which the fee of the streets is in the municipality and those in which the public has only an easement. In cases of the former class a line of decisions may be found to the effect that the legislature might authorize the use of the streets by a railroad without compensation to an adjoining owner, and without his consent, on the ground that, as the fee was in the public, it might be applied to any public use whatever. Mills, Em. Domain, sec. 203; Wagner v. Railroad Co., 25 N. Y. 526; O'Connor v. St. Louis, etc., R. Co., 5 Am. & Eng. R. R. Cas. 324; Clinton e. Railroad Co., 24 Iowa, 455.

On the other hand, where the public has only an easement in the streets, the rule is that the use of a street for a railroad is the imposition of an additional burden for which an adjacent owner may demand compensation. Dil. Munic. Corp., sec. 557, and cases cited. Grand Rapids & Indiana R. Co. v. Heisel, 38 Mich. 62; Sherman v. Milwaukee R. Co., 40 Wis. 645; Kansas City & Olathe R. Co. v. Hicks, 14 Am. & Eng. R. R. Cas. 100, and note; Florida Southern R. v. Brown, 1 So. Rep. 512.

"There is a

This distinction, however, has frequently been questioned. great difficulty, as it seems to us, in supporting important distinctions upon the fact that the fee was originally taken for the use of the public instead of a mere easement. If the fee is appropriated or dedicated, it is for a particular use only, and it is a conditional fee-a fee on condition that the land continue to be occupied for that use." Notwithstanding a dedication which vests the title in the public, it must be conceded that the interest of the adjacent lot-owners is still property." Cooley, Const. Lim. 556, note.

་་

The later rule is, that it is immaterial who holds the fee, and that when a street is occupied by a railroad, the owner of abutting property has suffered an injury for which he is entitled to compensation. Omaha, etc., R. Co. v. Rogers, 16 Neb. 117; s. c., 20 Am. & Eng. R. R. Cas. 79; Spencer v. Point Pleasant, etc., R. Co., 23 W. Va. 407; s. c., 20 Am. & Eng. R. R. Cas. 125; People v. Kerr, 37 Barb. 391; Story v. N. Y. Elevated R. Co., 90 N. Y. 122; s. c., 7 Am. & Eng. R. R. Cas. 596; Barney v. Keokuk, 94 U. S. 324, 342; Lahr v. Metropolitan El. R. Co., 104 N. Y. 268; Lackland v. North Missouri R. Co. 31 Mo. 180; Street Railway v. Cumminsville, 14 Ohio St. 541. No Compensation for Diversion of Trade.—Diversion of traffic and loss of business caused by a public improvement are damnum absque injuria, and are not proper elements of damage, first as being too remote and consequential, and second as being against public policy.-Mills, Em. Domain, sec. 191; Angell on Highways (2d Ed.), sec. 214; Jacksonville, etc., R. Co. v. Walsh, 106 Ill. 253; s. c., 14 Am. & Eng. R. R. Cas. 245; Selma, Rome & Dalton R. Co. v. Camp, 45 Ga. 180; Thompson v. Androscoggin Co., 54 N. H. 545, 554; Proprietor of Locks, etc., v. Nashua & Lowell R. Co., 10 Cush. 385, 389, 392.

"Loss of business, profits, and good will are not substantial grounds for damages, nor are they to be considered in estimating the injury caused by the taking of land." Fiero on Special Proceedings, 630, citing Troy & Boston R. Co. v. Northern Turnpike Co., 16 Barb. 100; Canandaigua, etc., R. Co. v. Paine, Id. 273.

In the leading case of Charles River Bridge v. Warren Bridge, 7 Pick. 344, in which this question was elaborately discussed, Parker, C. J., says: "The whole history and policy of this country from its first settlement, furnish instances of changes and improvements, the effect of which has been to transfer the adscititious value of real estate in one town, resulting from its favorable position for rade, to another which, by alteration of roads, erection of bridges, or more recent interior settlement, has taken its place as a centre of trade or travel, or a deposit for articles of merchandise. Losses of this kind never have been, and never will be, compensated; nor can compensa

tion be reasonably expected by the sufferers any more than by the dealers in any branch of trade who find their profits and emoluments destroyed by a change in fashion, or by new inventions for carrying on the same branch of business in a cheaper or more accessible manner.'

The question now more frequently presents itself, under the recent constitutional provision adopted by several of the States providing that "private property shall not be taken or damaged for public use without just compensation. Whether diversion of trade is an injury which demands compensation under such a provision is a comparatively new question in this country. In England, under the Railways and Land Clauses Consolidation Acts, which contain the words "injuriously affected by the execution of the works," it has been decided that "the injury must be actual injury to the land itself, as by loosening the foundation of the building upon it, obstructing its light, or making it inaccessible by reason of lowering the ground in front of it, or by some such physical deterioration." "The loss of trade or custom by reason of a work not otherwise directly affecting the house or land in or upon which the trade has been carried on, or any right properly incident thereto, is not by itself a proper subject for compensation." Rickett v. Metropolitan R. Co., 7 L. R. 2 H. L. 175, 198 (Eng. & Irish App.); King v. London Dock Co., 5 Ad. & E. 163; Beckett v. Midland R. Co., L. R. 3 C. P. 82; Caledonian R. Co. v. Walker's Trustees, 7 App. Cas. 259.

The rule in England, therefore, is that under the words "injuriously affected," loss of trade is not a proper subject for compensation. Hodges on Rys. 269.

In a Nebraska case where the tracks of a street railway owning an exclusive franchise for that mode of carriage were paralleled by those of a cable tramway, it was held that the cable company was not liable for any injury flowing from the mere matter of competition or from the fact that the better facilities of the new road attracted passengers from the old. Omaha Horse R. Co. v. Cable, etc., Co., 32 Fed. Rep. 727; Chicago & Evanston R. Co. v. Dresel, 110 Ill. 89; s. c., 20 Am. & Eng. R. R. Cas. 263.

Evidence of loss of trade, however, has been admitted to show that property was rendered less valuable by the obstruction of the highway and consequent diversion of traffic. Chamberlain v. Railroad Co., 32 Law J. (Q. B.) 173; 2 Best & S. 605; Pittsburgh, etc., R. Co. e. Vance, 8 Atl. Rep. 764; Drucker v. Manhattan R. Co., 12 N. East Rep. 568; Hooper v. Savannah & Memphis R. Co., 69 Ala. 529; 14 Am. & Eng. R. R. Cas. 256.

Evidence of diversion of travel has been admitted also to show decrease of rental value; Strange v. City of Dubuque (Iowa), 14 Am. & Eng. R. R. Cas. 107.

It will thus be seen that on most of the points above discussed, there are two conflicting lines of decisions, and the law has been unsettled. Recently there has been a marked tendency to unify these diverse rulings, and it may be presumed that the doctrines enunciated above are established as the law.

FRANK H. CLARK.

BOLTON

V.

SHORT-ROUTE RAILWAY TRANSFER Co.

(Advance Case, Kentucky. May 21, 1887.)

Where the legislature has exercised its constitutional right to authorize the construction of a steam railroad along a public street in a city abutting lot-owners have no claim for compensation unless the road is so constructed as to deprive them of the reasonable use of the street. It is immaterial whether the fee in the street is owned by the city or the abutting property

owners.

It is not essential to the right of a railroad company in constructing its road along the streets of a city to elevate its tracks above the surface wherever the character of the country makes it either essential or concurrent, that the word "elevated" should occur in the charter, or that the right to elevate them should be expressly granted; and even if the power under the charter to construct the road above the surface were questionable, yet a subsequent amendment to the charter having recognized the prior city ordinance by which the tracks were authorized to be elevated, this legislation places the right beyond doubt.

APPEAL from Louisville law and equity court.

A. Barnett and T. W. Bullitt for appellant.

Temple Badley and Woolley & Buckner for appellee.

HOLT, J.-The charter of the Short-Ronte R. Transfer Co., granted by the legislature in 1873, provides:

CHARTER
PROVISIONS.

Sec. 2. Said corporation is hereby granted the exclusive privilege to build, construct, maintain, and operate a railway transfer company, by steam or animal power, for the transportation of passengers and freight by the car-load or otherwise, including that portion of the city of Louisville north of Main street, from the east side of First street to the west side of Fourteenth street, for a period of ninety-nine years, dating from January 1, 1873.

"Sec. 3. Said corporation shall have the right, by and with the consent of the general council of the city of Louisville, to the use of or right of way to such streets and alleys, and such portion of the city's wharf within the limits named in the second section of this act, as the interests of said corporation may require, and in such manner and under such reasonable restrictions and conditions as may be agreed upon between said corporation and the general council of the said city of Louisville."

Subsequent sections grant to the corporation, among other priviFACTS. leges, the right to connect its track with that of any other railroad terminating in the city of Louisville, and give to any