mine the question from the face of the plea. For this defect, if for no other, the plea does not set up a sufficient defense to the action, and the demurrer, therefore, must be sustained. The seventh plea in substance avers that the bonds sued lIpon wore issued without any consideration, valid in law, and are null antI void, and that plaintiff, when the same were received, well knew that fact, and that the consideration therefor had failed. But the plea fails to aver any facts constituting such faUure, and for this reason this plea does not set up a sufficient defense to plaintiff's action, and the demurrer thereto must be sustained. Code Miss. §§ 1536, 1546; Mobile Sav. Bank v. Oktibbeha Co. 22 FED. REP. 580. The eighth plea avers that the bonds and coupons sued upon were issued and delivered to the Mobile & Ohio Railroad Company upon the express condition that said company would issue and deliver to the oountyof Oktibbeha certificates of capital stock in said company, and for the further consideration that said railroad company would build a road from Artesia west, by way of Starkville, extending 80 miles, and that said railroad company had refused and failed to issue and deliver said certificates of stock in said railroad company, and had failed and refused to build said railroad from Artesia, by way of Starkville, for the distance of 30 miles, and that, therefore, the consideration for which said bonds were issued had wholly failed, and that said bonds and coupons are null and void. The plea further avers that plaintiff, at the time that said bonds and coupons were received by it, well knew the conditions upon which they were issued and delivered, and that said certificates of capital stock had not been issued and delivered, and that said railroad had not been built. It is insisted that this plea is double, and that the d(Jmurrer should for that reason be sustained thereto. The plea only sets up, as a matter of defense, a failure of consideration in not issuing and delivering, stock, and in failing to build the road, and notice on the part of the plaintiff. This objection to the plea is not well taken. The plea sets up a sufficient defense to the action, therefore the dernuner to this plea must be oyerruled.
FIFTH NAT. BANK OF NEW YORK
NEW YORK ELEVATED
(Oircuit Oourt, S. D. New York. June 17,1885.)
1. Er,EVATl<:D RATLWAY-STUEETS IN NEW YORK CITy-RIGHTS OF Anu'rTING
LOT-OWNEH TO DAMAGES.
Where, under an act of a state Jeg'islature, a rai1l'0ad company erects an elevated railroad over a street, the fee of which is in the city, an abutting lotowner holds his easement in the street subordinate to the rights of the public therein; and unless the new structures erected on the street injure it as a thoroughfare for travel, and it is permanently subjeetecl to a new use which is suhversive of the original use, such ahutting owner, though he may suffer inconvenience, is not legally injured and entitled to damages.
FIFTH NAT. BANK'll. NEW YORK ELEVATED R. 00.
NEW AND USE. The jury are not justified in finding' that a new and inconsistent use has "een imposed upon the slreet, unless travel is practically impeded, or light in the traveled way is sensibly dimini-hed, or the street is, at the point complained of, made inconvenient for th(: accommodation of persons or vehicles.
Motion for New Trial. Kelly cf Mdcrae and Roger A. Pryor, for plaintiff. Davies cf Hapallo and Henry H. Anderson, for defendant. SHIPMAN, J. This is a motion by the defendant for a new trial, the jury having returned a verdict for the plaintiff for $6,000. Before the year 1874, Third avenue and Twenty-third street, each being streets 100 feet in width, were legally laid out by the authorities of the city of New York, over and upon lands which were acquired by condemnation for street purposes, under the act of 1813, whereby said city obtained the title in fee to said streets and to the land thereunder, in trust, that the same and that each street "be appropriated and kept open for, or as a part of, a public street and avenue, forever, in like manner as the other public streets in said city are, or of right ought to be." The plaintiff purchased, in the year 1874, a lot upon the south-west corner of Third avenue and Twenty-third street, which was bounded on the east lJy the west side of said avenue, and on the north by the south side of said street, and erected thereon a building, which was completed in the spring of 1875. This building has ever since been used in the following way: the basement for stores or offices, the first floor for the plaintiff's banking-room, and the other floors for apartments. Under the provisions of the statute passed by the legislature of the state of New York in 1875, and known as the "Rapid Transit Act," which provided for the construction of elevated and underground railroads, an elevated steam-railroad was built by the defendant, in the year 1879, along Third avenue. It was held by a majority of the court of appeals of the state of New York, in 1877, that, under the rapid transit act and the previous acts in relation to the defendant, provision was "made for compensation for any property rights the abatting owners may have in the streets," the fee of which is in the city; but the question whether the contemplated structures would invade any property or rights of such owners so as to entitle them to damages, it was thought did not arise. In re Elevated B. Co. 70 N. Y. 327; In re Gilbert Elevated Ry. Co. 70 N. Y. 361. No compensation to the plaintiff for injury or damage was made, and there does not seem to be any adjudication, by which the plaintiff was bound, on the subject. The structure which the defendant built was a permanent one, consisting, at the corner of the streets in question, of an elevated railroad track, placed upon substantial pillars about 15 feet high, and a depot over a part of Twenty-third street, which is reached by a staircase from said street; the entire structure being of the strength and
capacity necessary for the equipment of a railroad operated by steam, and for the accommodation of large numbers of passengers. This action was brought to roco\"e1' damages, which were alleged to have been cansed to the plaintiffs property by the erection of said road and depot, and by the runnin,::: of railroad trains near to the building. The principal damage was alleged to consist in the obstruction of light from the building, and in the injection into it of noxious odors, gas, and smoke. The charge to the jury was to the effect that if the streets, at the point where the plaintiff's building is situate, were permanently subjected by the erection of these structures to a new use, which was i:lubversive of and repugnant to the original use for which each street was taken,-that is, for an open thoroughfare or avenue for travel,and such new and inconsistent use was a damage to the easement of the plaintiff in the street, which easement or right of property can· sisted only in a. right to the light and air afforded by the street, and in a right of access thereto, then, for the damages arising to its property from such exclusion of air, light, and access, the plaintiff was entitled to compensation. The requests to charge covered five points, which were substantially as follows: (1) That the determination whether the street SllOUld or should not be kept open as a public street rested in the discretion of the legislature. (2) That the evidence clearly showed that the new structure did not subject the streets to a new use subversive of or inconsistent with their original use as thoroughfares. (3) That in order to find that there was such new and inconsistent use, the jury must find that the defendant's structures interfered with the free passage of persons, horses, or vehicles over Third avenue. (4) That an abutting owner has no right of property in the street to be affected or damaged by such new use. (5) That there could be no recovery for so much of the damage as was caused by the operation of the railroad trains. It is competent for the legislature, so far as not restrained by the constitution under which it acts, to grant to a railroad company power to lay a railroad longitudinally over a highway; and when private property is taken by a use which is subversive of or inconsistent with the original use, compensation must be made therefor. Springfield v. Connecticut River R. Co. 4 Cush. 63. When the title in fee to such street is vested in a city in trust for the benefit of the people, no compensation is to be made to the city for the occupancy of the street by the railroad, because the legislature conclusively determines what is for the public advantage. People Y. Kerr, 27 N. Y. 188. In such case, it is also often said that the abutting owners are not entitled to compensation, because, having parted with the title to the land covered by the street, they have no remaining interest or right therein which can be taken, or which can be the subject of damage. This statement of the law was true with reference to the facts which judges or commentators had in mind when the statement was made. An abutting proprietor upon a street, the fee of which is in the city, has no legal interest which can be affected by a surface horse railroad
FIFTH NAT. BANK"'. NEW YORK ELEVATED R. CO.
which is placed in the street; nor, although the inconvenience and annoyance resulting from the opei'ation of a steam surfa0e road is much greater than that resulting from a horse railroad, is his property ordinarily taken or appropriated, in a legal sense, by a stearu road which is laid opposite his lot. But a state of facts has occa· sionally arisen within the last few years by which, although the new method of travel to which the street is subjected, is for the transportation of persons or of freight, the structures wllich are placed upon the street for the convenience or necessities of the new system are such as not only blockade and prevent the street from being an avenue for ordinary travel, but also deprive an abutting owner from access to the street or from light from it. While a legislature may have said, in general, that the occupancy of the streets of a city by a steam railroad is consistent with the use for which they were established, yet it did not intend to say that all the structures which might subsequently be placed upon a particular narrow street for the purposes of such railroad did not impose a new burden upon the street. A platform may be built over a street which shall cover its entire width and exclude light from the roadway, and the adjacent buildings and structures may be placed opposite the lot of the abutting owner which shall prevent access to his land, and thus a new condition of things is brought into existen.ce which was not contemplated by learned judges when they said that an abutting owner has no interest in the street which can be the subject of damage. It is this new condition which raises the question whether an abutting owner, who has no right in the soil of the street, has any especial incorporeal right therein of which he may be deprived, and for the loss of which he is entitled to compensation. The main object of a city highway is for the public travel, but that is not its only object. City streets are also, incidentally, to provide sites upon which dwellings and buildings for business purposes can be built. Such streets are established in order to furnish an overflowing population with places in which to live and to work. An important part of the value of a lot abutting upon a street consists in its access to the street, and in the fact that one or more sides can always receive air and light, while a building away from a street may be hemmed in on all sides. This privilege or capacity which appertains to a lot abutting upon a street which has been dedicated to the public, though it is not a right in the soil of the street, is real. and is important, and, so far as the right of access to the street is concerned, has been distinctly recognized by courts. There may be a difficulty in defining the extent of the right, but thete is a natural sense of justice which is not satisfied by the declaration that because the owner has parted with his right to the soil in front of his lot, which was taken for the purposes of a street, therefore he is remediless, although the street may be permanently so covered by new structures for the benefit of modes of travel not used for ordinary street purposes, as to exclude him from access to it, or
118 from light from it. In the Story Case, this right is oalled an eaSement in the bed of the street f01: the purposes of air and light, and access from it. Story v. New Ym'k Elevated B. 00. 90 N. Y. But, inasmuch as the land covered by the street was taken for public uses, the abutting owner holds his easement subordinate to the rights of the public in the street; and if the new structures are not inconsistent with or destructive of the uses for which the street was originally taken, he has no cause to complain. Until the streets are burdened with an occupancy which substantially injures them as thoroughfares for travel, and they are permanently subjected by the new structures to a new use, which is subversive of the original use, the abutting owner, though he may suffer inconvenience, is not legally injured, because his easement is subject. to the controlling right of the public; and if the street continues to be a thoroughfare for ordinary travel, in accordance with the objects for which it was originally laid out, no right of the abutting owner is trenched upon. The question, then, which was submitted to the jury is of the first importance. It was whether, on the corner of Third avenue and Twenty-third street, either of those streets were subjected by the permanent structures there erected to a new use subversive of or inconsistent with the original purpose for which the stre.ets were taken, that of being a thorougfare for travel; and the jury were told that the main object of a street was to create and maintain an avenue for travel, and if these streets were kept open and unobstructed, and were not used for purposes inconsistent with travel, the use of the street was preserved. 'Vhile the language of the charge was correct and was technically sufficient, I fear that the jury were not sufficiently clearly told by the court that, in order to find that the streets were not kept open and unobstructed, the road-bed.then not being occupied by the railroad track, it was not sufficient to show that pillars and staircases had been placed in the streets, and a track had been placed upon the pillars which to some extent prevented the streets from being as open as they were before the road was constructed, but that they must be of opinion that substantial obstructions had been placed upon tile travel upon the street, and that it was thereby rendered inconvenient to the public as an highway. I fear that the jury were unintentionally led into the opinion that because a new and permanent strncture for the purposes of a steam road had been placed over a street of 100 feet in width, therefore they were permitted to find that a new and inconsistent use was imposed upon the street, although travel was practically unimpeded, and light in the traveled way was not sensibly diminished, and the street was not actl1ally at that point made inconvenient for the accommodation of persons or vehicles, As the motion for a new trial is granted for the reason which has been gi ven, I do not consider the remaining question which was strenuously argued by the defendant's counsel, which was, in substance, that the injury caused to the plaintiff by the injection into its build-
ing of gas and smoke in consequence of the operation of the trains, should not be considered as an element of damage. The. motion for a new trial is granted.
WESTERN UNION TEL.
(Circuit (fourt, S. D. Iowa. June 11, 1885.)
'rELRGRAPII PAItTlCUI,AU PLACE. OF MESSAGE-DIRECTIONS TO DELIVER AT
The proper mode of directing a telegraph company to deliver at a particular place all telegrams directed to a party, is to leave with the company or send to it at its office directions in writing; and It mere verbal instruction or request to 8 messenger of the company at some other place than its office, cannot be reo lied on to fix any legal obligation on the company for a failure to so deliver a message. Where a telegraph company telephones to the place of business of a party to whom a telegram is directed, and, learning that he is out of the city!lnd will be absent for seVeral days, causes said telegram to be delivered at the residence of the party, to his wife, and then informs the sender of the message of the absence of the party from the city, it has performed its duty. It is not the duty of a telegraph company, with offices scattered all over the United States, to keep the employes of everyone of its offices in the country. or in anyone state, informed of tile time when every other office close.:! for the night. On examination of the evidence in this case, held, that negligence on the part of the telegraph company is not shown, and that any loss that resulted to plaintiff from a failure to receive the message in time to act thereon. was caused by the contributory n"glig-ence of plaintiff in not informing his wife where to send messages received during his alJsence from home, or by her failure to act promptly in the matter.
2. SAME-ABSENCE OF PARTY ADDRESSED FROM CITy-DUTY OF COMPANY.
3. SAME-DuTY TO INFORM EMPLOYES OF Tam OF CLOSING OTHER OFFICES.
Tort for a Failure to Transmit and delIver a telegraphic message seasonably. The plaintiff claimed a recovery of $10,000 upon the following state of facts: On the twenty-fifth day of February, 1884, one R. W. Patterson filed in the office of the defendant in Chicago, at 3: 45 P.M., the following message:
"To Welker Given, Des Moines, Iowa: Will you consider a proposition to become editor in chief of an important paper at Denver; salary three to fonr thousand, and stock interest? If so, come to Chicago to-night and see tho proprietor to-morrow It is a fine prospect. [Signed] "R. W. PATTERWN."
This message was sent to Des Moines at 3: 55 P. M. and was there received at 4 P. M. The plaintiff, to whom the message was addressed,
Heported by Robertson Howard, Esq., of the St, Paul bar.