#### Chicago, Rock Island & Pacific Railway Company v. Sophia Ottillia O’Neill.

Filed March 8, 1899.

No. 8769.

1. Eminent Domain: Railroads: Adjacent Landowners: Damages. When a railroad has been eonstrnoted and put in operation, an adjacent landowner may sue at once for consequential damages to his property and recover in the action full compensation for all injuries which he has' sustained, or which will ever afternurds accrue, from a prudent and careful operation of the road.

2. -: ■ — -—■—: -: -: Time to Sue. But such action need not be commenced immediately. A party may ivait, within the period of limitation, until the extent and character of the injury to his property has been ascertained by experience and made ' susceptible of absolute proof.

3. -: Measure oe Damages. Where property has been taken or damag-ed for a public use, the owner is entitled to recover as compensation the difference between the value of such property immediately before and immediately after the completion of the improvement from which the injury results.

4. '•-:--. The jury in fixing the damages sustained by a landowner in consequence of the appropriation, or injury, of his property for a public use may take into account every element of annoyance and disadvantage resulting from the improvement which would influence an intending purchaser’s- estimate of the market value of such property.

5. Striking Out Evidence' Erroneously Admitted. Where evidence improperly received is afterwards stricken out and expressly withdrawn from the consideration of the jury,-the error involved in its reception is ordinarily cured.

6. Pleading: Separate Causes oe Action. Where distinct causes of action are blended in the petition, the only appropriate remedy is a motion for an order requiring a separate statement and designation.

7. Review: Questions Not Raised Below. It is a general rule, to which the record in this case presents no exception, that objections not urged in the trial court will not be considered here.

Error from tbe district court of Lancaster county. Tried below before Tibbbts, J.

*Affirmed.*

*W. F. Evans, L. W. Billingsley,*and *R. J.. Greene,*for plaintiff in error.

*240TF. *J. Bryan, T. 8. Allen, 8. B. Pound,*and *Roscoe Pound, contra.*

SULLIVAN, J.

In 1887 tlie plaintiff Sophia Ottillia O’Neill bought lot 8, in block 14, of Kinney’s O Street Addition to the city of Lincoln, and soon afterwards built thereon a two-story dwelling-house, which she occupies as a family residence. The house fronts on P street, which runs east and west through the city and seems to have been at one time a much traveled thoroughfare. In 1892 the defendant the Chicago, Rock Island & Pacific Railway Company constructed and put in operation a line of railroad across P street and about 225 feet west of plaintiff’s property. Shortly after the track ivas laid a depot ivas constructed on the right of way just south of P street, rendering the same impassable. This action ivas brought to recover damages to the premises above described occasioned by the construction and operation of the defendant’s road and by the obstruction of P street and the deflection of public travel therefrom. The trial of the action to a jury resulted in a verdict in favor of the plaintiff.

The. defendant complains of the admission of testimony in regard to the specific annoyances and inconveniences to which the plaintiff had been subjected in the use and occupancy of her property. We have carefully read this evidence and think there ivas no error in its reception. It is undoubtedly true that an action might have been brought and tried as soon as the road was put in operation, and that in such action all the damages which the plaintiff had sustained or ever would sustain from a careful and prudent operation of the road would have been then recovered. But it is also true that she was not required to sue immediately. It. was her privilege to wait until the extent and character of the permanent injury to her property had been ascertained by experience and made susceptible of absolute proof. *(Penn**241*Mutual Life Ins. Co. v. Heiss,*141 Ill. 35.) The constitution (art. 1, sec. 21) provides: “The property of no person shall be taken or damaged for public use without just compensation therefor.” While injuries of the character here in' question are, within the meaning of the provision quoted, injuries inflicted for a public use, they are not to be ascertained by proceedings in condemnation, but by an action brought for that purpose within the time fixed by the, statute of limitations. *(Gottschalk v. Chicago, B. & Q. R. Co.,*14 Neb. 550; *Hastings & G. I. R. Co. v. Ingalls,*15 Neb. 123; *Atchison & N. R. Co. v. Boerner,*34 Neb. 240; *Omaha & N. P. R. Co. v. Janecek,*30 Neb. 276; *Rigney v. City of Chicago,*102 Ill. 64; *Chicago & E. I. R. Co. v. Loeb,*118 Ill. 203.) In such an action the measure of recovery is the difference between the value of the land before and its value after the road was constructed and put in operation. To assist-the jury in reaching a conclusion upon this question they may take into account a variety of circumstances.

In *Chicago, B. & Q. R. Co. v. O’Connor,*42 Neb. 90, it is said in the fourth point of the syllabus: “That in ascertaining such depreciation the cuts or fills made in the street in front of the property, the proximity of the track to the front of the lot, the danger of fire from passing trains, the probability of damage to the house on the lot from jars caused by passing cars and engines, the inconvenience to the occupants of the property arising from the presence and proper and ordinary use of the railway track for all time, the annoyance to such occupants from smoke, cinders, and dust from passing trains and engines, the annoyance caused by the roar of trains, the sounding of whistles and the ringing of bells, and every other fact and circumstance that would have influenced the market value of the property in the mind of a good-faith intending purchaser thereof, would have all been proper elements for consideration in determining the damages to plaintiff’s property.” Such was the character of the evidence offered by the plaintiff and submitted *242to the jury in this case. Its purpose and tendency was to show the extent to which the plaintiff’s property had been injured by the operation of the road, and by the permanent obstruction of P street. The court, in a charge which is an accurate and admirable presentation of the law upon every issue in the case, directed the jury that the plaintiff’s damage was the depreciation in value of the property in question caused by the construction and operation of defendant’s road. It may be that evidence in regard to the bursting of the plumbing and the quickened action of the water-meter in plaintiff’s house was improperly received, but if so, no prejudice resulted, for it was afterward withdrawn and the jury instructed to disregard it.

It is contended that the evidence in relation to the obstruction of P street should not.have been received, because that was an act done after the construction of the road and, therefore, constituted a separate cause of action. Conceding that the construction of the depot platform should be regarded as an independent injury, it does not follow that the judgment should be reversed.

The defendant may have had reason to apply for an order requiring the plaintiff to separately state and number her causes of action; but no such motion was made, and it is now too late to take advantage of what was at most a mere defect in the form of the petition. Whether the closing of the street be considered as a substantive ground of action, or as a mere evidential fact, the testimony in question was properly admitted.

It is insisted that the witnesses for the plaintiff in estimating the damages were not limited to damages occasioned by the company’s acts, and may, in giving their answers, have taken into account depreciation from other causes. Invariably the questions were directed to the value immediately before and immediately after the road was constructed. The witnesses could not have misunderstood them. Besides, the objection now urged was not made during the trial. In view of the evidence the *243verdict seems reasonable and just. There appears to be no material error in the record and the judgment is therefore

„ Affirmed.