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present needs of the public. Cooke v. Boston & L. R. Corp., 133 Mass. 185, 10 Am. & Eng. R. Cas. 328. The defendant places much reliance upon the well considered case of State v. St. Paul, M. & M. R. Co., 35 Minn. 131. There the charter of the company gave it authority to construct its road upon, along, across, or over any street; but the company was required to put the street in such condition and state of repair as not to impair or interfere with its free and proper use." The company laid its tracks down on and across the surface of a street. By reason of an increase in the number of tracks and railroad traffic, and the increase of travel on the street, the crossing became unsafe and dangerous. Under these circumstances, and the charter provision before quoted, it was held that it was the duty of the company to provide, at its own expense, some other mode of crossing, as by carry. ing the street under or over the tracks.

There is no complaint here that the bridge obstructs or in. terferes with the use of the street below, so that many of the

cases cited, some of which have been noticed, do Exponso of not dispose of the question in hand ; nor do these reconstructo? authorities show that a duty on the part of a rail. an element of road company to maintain a bridge structure de. damago. volves upon it the further duty of reconstructing

the bridge, at its own expense, so as to make it conform to the street as subsequently widened by the city by the exercise of the right of eminent domain. When it is sought to open a street or road across a railroad by proceeding to condemn property, the damages are not limited to the land thus appropriated, but include the expenses of building cattle guards, fencing, and such like outlays, entailed upon the company. Old Colony & F. R. R. Co. v. Inhabitants of County of Plymouth, 14 Gray (Mass.), 155; Chicago & G. T. R. Co. v. Hough,61 Mich. 507. Here the city seeks to widen the street, and in doing this not only appropriates part of the defendant's right of way, but throws upon the company the expense of removing banks of earth, and readjusting the bridge to conform to the new order of things. These ex· penses thus brought about, on the plainest principles of justice, constitute elements of damages to be allowed the company in the proceedings to condemn property ; for the bridge structure is property as much as the land on which it rests. If the city is relieved from the payment of these expenses, it is because the defendant, in accepting the ordinance, agreed to change and alter its bridge from time to time so as to conform to the street as it might thereafter be widened. We find no such an undertaking in the ordinance. It was passed and · accepted in view of the then established width of the street, and it makes no provision concerning this bridge in case the street should be widened. As there is no agreement on the part of the company to readjust the bridge, at its own expense, to conform to the street as widened, and as no rule of law casts that expense upon the company because of its duty to maintain the bridge, it follows that the expenses of removing the embankment and adjusting the bridge to the street as widened are proper elements of damages to be allowed the defendant. The judgment is therefore reversed, and the cause remanded. All concur.

Laying out Highway Across Railroad Track-Damages to Which Company is Entitled.—See State ex rel. Chicago, M. & St. P. R. Co. v. Shardlow (Minn.), 45 Am. & Eng. R. Cas. 106; State v. District Court (Minn.), 42 İd. 247, note 247 ; State v. Chicago, B. & Q. R. Co. (Neb.), 42 Id. 248, note 253

LAND

V.

WILMINGTON & WELDON R. Co. (North Carolina Supreme Court, November 6, 1890.) Eminent Domain-Limitation of Action to have Damages Assessed.- A petition by a land owner to have damages assessed against a railroad company which has constructed its road over his land, and the charter of which provides that when it has appropriated land without authority, no action shall be brought by the owner except a petition to have his damages assessed, for the bringing of which no time is limited by such charter, is neither an action of trespass, nor one on a liability created by statute, within $ 155, Code Civ. Proc. N. Car., limiting such actions to three years.

APPEAL from Superior Court, Nash County.
Don Gilliam, for appellant.
Bunn & Battle, for appellee.

SHEPHERD, J.—The defendant entered upon the land of the petitioner, and constructed its road in 1886. It has no conveyance of the land, nor has it acquired any title by lapse of time. Its title, therefore, must be

Case stated. derived from the provisions of its charter, and this does not provide for the vesting of title in the defendant until, either at its instance ($ 14 of its charter, Rev. St.) or that of the pe. titioner, ($ 18, Id.,) the damages have been assessed and paid. This is also true of the general railroad act, (chapter 49, Code) the privileges of which are extended to existing railroad corporations. Code, $ 1982. No such proceedings were instituted by either party until the petitioner filed this petition on the 15th of February, 1890. Unlike the charter of the North Carolina Railroad Company, ($ 29,) there is no time prescribed in the charter of the defendant, nor in the general railroad act, in which the owner is to be barred of his right of entry or compensation. It must follow, then, that the defendant is occupying the land of the petitioner without any legal title, and that, in the absence of any statutory provision to the contrary, the petitioner could sue in trespass or in ejectment. The possession of the defendant, however, is protected by a provision of its charter to the effect that where the defendant has entered without any legal proceedings, no action of trespass, or of any other character, shall be brought by the owner, except a petition to have his damages assessed. This takes away all damages for the precedent trespass, and confines the owner to the compensation provided by the statute. These extraordinary privileges which have been conferred upon the defendant ought to be sufficient, it would seem, to meet all the reasonable demands incident to the construction of its road. But it is insisted that, while it may oc

47 A. & E. R. Cas.-11

cupy the owner's land, and acquire title by an adLand ownor's verse possession of 20 years, the owner is powerless action not

to prosecute his only remaining remedy, except barred by three years'

within the first three years of that period. We limitation. cannot believe that such an anomalous state of af

fairs was contemplated by the legislature. The defendant could have acquired title by instituting proceed. ings under its charter, but this it has failed to do, and it would be only following the dictates of common justice to allow the owner his compensation (not damages for the trespass) at any time before the possession of the defendant has ripened into an indefeasible title. In other words, so long as the defendant is content to occupy the land without title, the owner should not be prevented from pursuing his single remedy. In the absence of any legislation in the charter, or in the general railroad act, the defendant relies upon $ 155, subds. 2, 3, Code Civil Proc. Pierce, in his work on Railroads, 192, says that such special remedies are not ordinarily barred by the general statutes of limitation, but that this is usually done by some express provision in the statute which creates the remedy." Conceding, however, that the general statute applies, we are of the opinion that the present proceeding is not embraced in any of its provisions. Subdivision 3 relates only to actions of trespass, which we have seen cannot be maintained at all against the defendant. Apart from this, however, trespass is not the true character of this proceeding. In support of this view, we have a case directly in point, from Pennsylvania, (McClinton v. Pittsburg, Ft. W. & C. R. Co., 66 Pa. St. 404,) in which it is held that “the petition properly used is not for the recovery of past damages under an unlawful entry, but for compensation for a right to be invested in the company. Though the latter is often denominated damages,' its subject is essentially different from the former. It is called 'damages' only in the sense of an unliquidated demand. But in its nature it is the price of a purchased privilege. On the contrary, the claim for the tortious entry and illegal user of the land is purely and properly damages. It is obvious, therefore, that the statute of limitations is not applicable to the petition, which does not determine, unless by consent of the parties, the former damages for intrusion, but compensation only for the future use." The other provision relied upon (subdivision 2) refers to actions“ upon a liability created by statute other than a penalty or forfeiture.” We are unable to understand how the liability incurred by the interruption of an owner's constitutional right to occupy and enjoy his property, can be said to be created by any statute. It is true that, under the defendant's charter, the petitioner is shorn of all of the usual privileges of ownership, save only a right to have compensation by a particular method of procedure. This right to compensation is conferred by the constitution, and the liability of the defendant is not created, but only regulated, by statute. The language of the provision mentioned is contained in the Codes of several states, and we have been unable to find any decision applying it to cases like ours. It means precisely what it says,—“a liability created by statute," such as an assessment for the reclamation of swamps and overflowed lands," (People v. Hulbert, 71 Cal. 72,) or the claims of a district attorney for his commissions on debts recovered for the county, where the statute provides for his payment, (Higby v. Calaveras Co., 18 Cal. 176,) and like cases. These references serve to illustrate the meaning of the words of the statute, and very clearly indicate that they do not embrace a mere regulation for the enforcement of a right secured by the fundamental law of the land. In conclusion, we will add the remarks of Chief Justice THOMPSON in Delaware, L. & W. R. Co. v. Burson, 61 Pa. St. 378, that “the defendant has no right to complain of delay as a reason for invoking the statute. The company might and ought to have proceeded, and had the damages assessed and paid them, if it did not intend that the plaintiff might take his time to test the damage, inconvenience, or otherwise, that the road would be to his property before proceeding.” The petitioner is entitled to the relief prayed for.

Affirmed.

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Eminent Domain-Limitation of Actions to Recover Compensation.-See Midland R. Co. v. Smith (Ind.), 44 Am. & Eng. R. Cas. 222; Lyles v. Texas & N. O. R. Co. (Tex.), 39 Id. 59, note 60.

Limitation of Action to Recover Damages to Land not taken where the Railroad has been Constructed.-In trespass to try title to a strip of land, which for more than two years has been occupied by a railroad track, where the company by cross bill seeks condemnation of the right of way, the right of the land owner to compensation for the injury to the land not taken is not barred by Rev. St. Tex. 1879, art. 3203, limiting to two years action of trespass for injuries done to the estate or the property of another. Texas W. R. Co. v. Cave, (Texas, March 6, 1891), 15 S. W. Rep. 786.

COLORADO MIDLAND R. Co.

v.

BROWN et al.

(Colorado Supreme Court, Nov. 19, 1890). Eminent Domain-Measure of Damages for Land Taken.-In proceedings under the act of eminent domain in this state, the proper measure of the owner's recovery is : (1) compensation for the land or property actually taken equal to the true and actual value thereof at the time of the appraisement; (2) damages to the residue of the land or property equal to the actual diminution of its market value, if any, for any use to which the same may reasonably be put.

Evidence Admissible on Question of Damages and Value.-In arriving at the value of the property taken, and the damages, if any, to the residue, all evidence having a bearing upon the compensation and damages to be awarded is admissible. With proper instructions from the court we must presume that the jury do not draw improper inferences from competent evidence.

Damages to Residue of Premises-Declaration of Intention to Repair Dam: age.-It would be an unsafe rule to prevent the owner from recovering the actual damages done to the residue of his premises by the mere declaration of a witness that it was the intention of the party doing the injury to repair the damage at some future time.

Evidence as to Damages-Admission Without Objection.—Where evidence in relation to certain damage is admitted without objection or exception at the trial, the propriety of including such damage, if any, in the assessment, cannot be questioned on appeal.

APPEAL from District Court, Pitkin county.

Appeal from a judgment awarding compensation and damages to appellees for a strip of land through their premises taken for right of way for appellant's railroad.

H. T. Rogers, A. E. Pattison, and Wilson & Stimson, for appellant.

C. W. Franklin, for appellees.

Elliott, J.-The assignments of error are very numerous,

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