Opinion of the Court.

"III. The court instructs the jury that the measure of damages to adjacent property caused by the use of a street, as a site for a railroad, is the diminution of the value of the property, and the recovery may include prospective as well as past damages when the obstructions to the use of the street are of a permanent nature."

The court, upon its own motion, instructed the jury: "That if they believe from the evidence that the defendant, by its agents or employés, constructed in Benton Street, between lot 9, in block 69, and lots 1 and 2, in block 78, in the city of Hot Springs, a permanent embankment, as a road-bed on which to lay and extend its railroad track, and then, or before the commencement of this suit, placed and fixed its track permanently upon said embankment, as charged in the complaint; that said lots, or any of them, were or are permanently injured or damaged thereby, and that said lots were then and still are the property of the plaintiff, Fannie G. Williamson, they must find in her favor, and, in such case, the difference between the present value of the lot or lots so damaged with the embankment, and the said track thereon existing, and what such value would be if the embankment and said track were removed or had never existed, is the measure of damages." To all of which instructions the defendant at the time excepted.

The defendant requested the court to give several instructions to the jury, which the court declined to do, except in one instance, in a modified form, to which refusals the defendant at the time excepted; but as none of them are relied upon in the argument in this court except the second one, it is only necessary to set that one out in full. It is as follows:

"The right of way was granted by Congress to the defendant from a point on the eastern boundary of the Hot Springs. reservation to the old Malvern stage road within said reservation. The grant carried with it the right to erect and maintain all suitable structures usual and necessary to the operation of a railroad, including a depot, station-house and such tracks and other improvements of that nature as are necessary to the proper and convenient dispatch of its business; and if you find that the turn-table and other improve

Opinion of the Court.

ments complained of, or any part of them, are within the right of way granted by Congress to the defendant as aforesaid, and are necessary to the operation of its road, and such as are usual at terminal stations, you cannot find for the plaintiffs by reason of any damage caused to their lots by such improvements."

The jury returned a verdict in favor of the plaintiff for the sum of $2275, upon which judgment was rendered; and after a motion for a new trial and also a motion in arrest of judgment had both been overruled, an appeal was taken to the Supreme Court of the State, which affirmed the judgment of the trial court. 45 Arkansas, 429. This writ of error was then sued out.

The following is the only assignment of error:

"The court erred in ruling that the plaintiff in error did not have the lawful right to construct its works, including the turn-table, on the right-of-way granted it by the act of Congress of March 3, 1877, and in holding that it was liable to the defendant in error by reason of the alleged obstruction caused by said works.”

From the foregoing statement it is observed that the claim for damages in the trial court was based upon two propositions: First, that the plaintiff's property was injured by reason of the embankment in Benton Street alongside it, west of the terminus of the congressional right of way; and, second, that it was also injured by reason of the construction and existence of the turn-table partly upon the congressional right of way no claim for damages ever having been made by reason of the construction of a road-bed and track upon the congressional grant.

It is also observed that, while the defendant saved exceptions to the various rulings of the court, on the question of damages arising from the construction of the embankment on that part of Benton Street separating the plaintiff's lots, and also as to the rule for the computation of such damages, none of those exceptions are embodied in the assignment of error, nor is any point made in relation to them in the brief of counsel for the company. In his own language, "The only

Opinion of the Court.

question before this court is that which arises under the act of Congress, . . and relates alone to the turn-table and works constructed on that part of the right-of-way embraced in the grant by Congress. This excludes from consideration the embankment built upon the western extension of the track, under the city ordinance, and involves the proper construction of the act of Congress."

The question before us is, therefore, narrowed down to the ruling of the trial court upon the only issue which the assignment of error presents. Upon an examination of the record it will be found that no evidence was introduced by the plaintiff as to whether the turn-table and other works constructed on the right of way injured and damaged her property at all; and the only evidence on that subject was introduced by the defendant, which evidence tended to show that, by the erection of a depot and other works on the right of way, property in that vicinity had not only not been depreciated, but had, in reality, risen in value.

It is further observed that in its charge to the jury the court made no reference whatever to the question of damages arising out of the construction and operation of the turn-table and other works on the congressional right of way, except that it refused to charge that the defendant had the right to construct and maintain whatever structures thereon it might deem essential to its business, as above set forth in detail; or that, having that right, it was not liable to the owners of abutting real estate for damages caused by the exercise of that right in a proper and skilful manner. Inasmuch, therefore, as the plaintiff introduced no evidence to sustain that branch of her claim for damages, the court was constrained to conclude that it was eliminated from the case. She certainly could not obtain a verdict for any damages arising out of that branch of the claim without introducing any evidence to support it. The evidence which the defendant introduced bearing on that question, if taken into consideration by the jury at all, could not have had any but a favorable effect as to the defendant; but, as already remarked, it was rendered unnecessary by the plaintiff's virtual abandonment of that part

Opinion of the Court.

of her claim for damages. There is nothing in the record to show that that evidence was considered by the jury in arriving at their verdict, because no charge relative thereto was given by the court, or could legally have been given by it on that question. The refusal of the court to charge upon an abstract question in relation to which the plaintiff had introduced no evidence, and which was not, therefore, before it, was not

error.

Whilst we hold this view upon the sole question involved in the assignment of error, it is proper to add that we concur in the view taken of this case by the Supreme Court of Arkansas. That court held that the act of Congress granting the right of way to the defendant company over the strip of land upon which its road was to be operated, (which in this case was along the line of Benton Street, an original street in the town of Hot. Springs, and used as such at the time of the passage of the act,) carried with it the right to construct, maintain and operate its line of railroad therein, and to appropriate such right as a location for its turn-table and depots and for any other purpose necessary to the operation of its road; but that it was equally clear, under the provisions of the present constitution of the State of Arkansas, that if in the exercise of that right the property of an adjoining owner was damaged in the use and enjoyment of the street upon which the road was located, such owner would be entitled to recover such damages from the company. It further held that the contention of the plaintiff in error that the act of Congress invested it with an absolute title to the street along which its road was located, and exempted it from any liability for consequential damages resulting to an abutting owner from the laying of its track in a proper and skilful manner, was founded upon cases arising under the familiar constitutional restriction that private property shall not be taken for public use without compensation, which decisions generally turned upon the question what is a taking, within the meaning of such provision; that the constitution of that State of 1878, which provides that "private property shall not be taken, appropriated or damaged for public use without just compensation," has changed that rule;

VOL. CXXXVI-9

Syllabus.

that all the decisions rendered under similar constitutional provisions concur in holding that the use of a street by a railroad company as a site for its track, under legislative or municipal authority, when it interferes with the rights of adjoining lot owners to the use of the street, as a means of ingress and egress, subjects the railroad company to an action for damages, on account of the diminution of the value of the property caused by such use; and lastly, that even conceding the authority of the town of Hot Springs to pass the ordinance authorizing the company to construct and maintain the railroad embankment, track and turn-table complained of, it cannot impair the constitutional right of the defendant in error to compensation.

We think those views are sound and in accordance with the decisions of this court in Pennsylvania Railroad Company v. Miller, 132 U. S. 75, and New York Elevated Railroad v. Fifth Nat. Bank, decided May 5, 1890, 135 U. S. 432. The judgment of the court below is

Affirmed.

LOVELL v. CRAGIN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE EASTERN DISTRICT OF LOUISIANA.

No. 212. Argued March 12, 13, 1890.-Decided May 19, 1890.

When the matter set up in a cross-bill is directly responsive to the averments in the bill, and is directly connected with the transactions which are set up in the bill as the gravamen of the plaintiff's case, the amount claimed in the cross-bill may be taken into consideration in determining the jurisdiction of this court on appeal from a decree on the bill. In Louisiana the holder of one or more of a series of notes, secured by a concurrent mortgage of real estate, is entitled to a pro rata share in the net proceeds, arising from a sale of the mortgaged property, at the suit of a holder of any of the other notes, and an hypothecary action lies to enforce such claim, based upon the obligation which the law casts upon the purchaser to pay the pro rata share of the debt represented by the notes that were not the subject of the foreclosure suit.