Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-08-24
THE NEWS NORFOLK AND TIREF


1t is well settled in THIS state tnd'.
though y railroad company has leSai
authority to build a railroad in u street
yet. il the same work injury 10 an abut-
ting proper owner. he may recover OF
the company damages therefor Inc
case at once presents a troublesome
question. Is the Ohio River Raiiroau
Company liable At ali? The railroad
was no; built by it. but by another cor
pOrdtion. the Lexington n Zig SANDY
Railroad Company: but. by lease or
otherwise, 1t went into the hands of the
Ohio River Railroad Company. when
was operating it when this suit WAS
brought against It alone. l need not
discuss liability for wrongs of lessor
and lessee railroad companies under the
different forms of the question often
arising. Our question is. is the ono
Sivor Company liable? If we say that
the construction ana operation OF the
road III front of the plaintiffs property
as a private nuisance. ii might seem,
It first thought, that the ONO lsiNer
Company would he liable. on the legal
principle that where Il lessor constructs
something that is a nuisance and the
source Of injury. and leases his land
and the Tenant actively continues the
nuisance. both are liable. and. l sup
pose. either In such case the lessor
originates. and the tenant continues the
wrong. But. on further thought. this
does not meet the REGULARITY or true
nature Of this case. The instant the
Huntington G Bii, SANDY Company fin
shcd. and began the operation of this
road The injury TO the plaintiffs prop
erty was complete. and that injury was
not temporary nuisance. abatable and
removable. because the railroad was
authorized by the municipal authority
10 ne in the street and was not pub
lie nuisance. and was thus permanent
structure. affecting permanently the
substantial value OF the property. If in
fact it injured IL. and the right of ac-
ton at once arose to allow Quinn Bros.
to sue the Huntington " Zig Sandy
Company and recover once for al entire
dImagcs for all future time. and they
could not maintain action after action.
from time to time. TO recover damages
occurring from time 10 time from the
continued use Of the railroad. Now.
when this cause OF action WAS COM
p!etc ii was alone against the Licking
ton & Bis sandy Railroad Company.
and the Ohio River Railroad Company
was not then liable la it. Its subsc-
qupnt lease and operation of the road
would not make ii liable to that action.
Counsel for defendant insist that this
IS not nuisance; seeming Ia think that
If SO regarded its daily continuance
would be = cause Of action and make
the company liable. II built in the
street without authority the road would
10 a public nuisance. and. II injuring
the plaintiffs. Il private nuisance. The
town license removed the cas- of public
nuisance but not that of private nuis-
ancc. In this respect II j.; huiit As If
without authority. liut. even If Il NUS
ancc. above cases show that. if the
damage is original and permanent. an
action for the total recovery. past and
iutnrc, at once lies II Is the nature
ot The injury, not the name We may
give the tort, that rules the matter
1t is wrong or tort. name it as we
may. do not see that the name is i'm
pprtant. The verdict of the jury has
given me the chief trouble in the case
but, ~ further consideration. think
the verdict j. contrary TO the measure
or standard Of damages set up by law
and it cannot stand. Where Il verdict
depends upon the weight of evidence
and deduction thercirom, or credit OF
Witnesses. it is entitled 10 great weight;
and cannot be set aside unless very
plainly wrong; but where il violates the
measure of damages fixed by law. Now.
the measures Of damages fixed By law.
ON FACTS conceded or plainly appearing.
IL IS set aside because IL is contrary to
law. II the property. for the purposes
iol which IL is used. is worth as much
Immediately after as immediately be-
lore the construction Of the railroad. no
recovery can be had. If worth less. The
difference between its former ANA its
deprecated value is the measure.
conclude that the verdict. in Law, Vio-
In i"s the rropcr standard Of damage.
Reversed, verdict set aside.