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the replications took issue on the facts alleged. If the instructions correctly stated the law they were not objectionable for want of evidence to prove the facts alleged.
It is not necessary and would not be profitable to repeat the rules of law distinguishing temporary from permanent injuries to lands stated in the cases above cited. If the evidence for the defendant is accepted as true, the injury to the plaintiff's lands occasioned by turning the water of the drainage channel into the river on January 17, 1900, was not one which might or might not be continued or might or might not be injurious in the future. The drainage channel was a construction of a permanent character, and under the act governing the sanitary district a continuous flow was to be maintained for all time, necessarily continuing, without change, the injury to the plaintiff's lands. The court did not err in giving the instructions, which were correct statements of the law.
The tenth instruction offered by the plaintiff and refused, based a supposed rule of law that the damages to plaintiff's lands were temporary and not permanent upon an admission that in times of low water the lands were not flooded, and were only flooded when the water was high and the river out of its banks. That could only be so if a permanent injury must be continuous and the lands be constantly submerged, but counsel who offered the instruction insist that they take no such position. Their interpretation of the instruction is, that damages arising from intermittent floods, uncertain in time, duration and extent, could not be assessed in one action and therefore are temporary. It is true that the amount of water contributed by the river at different times of flood could not be definitely ascertained, but there would be no difficulty in determining the increase on account of a steady and continuous flow from the drainage channel not affected at all by storms or melting snows. The court did not err in refusing the instruction.
It is also contended that under the conceded facts in the case the plaintiff was entitled to a verdict for nominal damages, and therefore the verdict and judgment were contrary to the evidence. Where a legal right has been invaded, although there may be no evidence of actual damages, the plaintiff may recover nominal damages, but the Statute of Limitations applies to all damages and bars a recovery where the statutory period has elapsed. The plaintiff cannot recover nominal damages where he has no cause of action. The judgment is affirmed.
THE CITY OF DECATUR, Appellee, vs. E. B. PRYOR, Re
ceiver, Appellant.—THE CITY OF DECATUR, Appellee, vs. THE CINCINNATI, HAMILTON AND DAYTON RAILWAY COMPANY et al. Appellants.
Opinion filed February 17, 1915.
1. SPECIAL ASSESSMENTS-ordinance construed as requiring city to pave approaches to subway. Where a track elevation ordinance requires a railroad company to construct a subway at a certain street, build the bridge required and pave with brick the roadway in the subway, all at its own expense, a subsequent provision of the ordinance that the city, at its own expense, shall “build, construct and maintain the approaches to said subway" must be held to include the paving of the roadway of the approaches, particularly where it is apparent that the pavement of the street was in contemplation of the parties when the ordinance was passed by the city and accepted by the company.
2. MUNICIPAL CORPORATIONS-a track elevation ordinance, when accepted, constitutes a binding contract. A city has the power, in passing a track elevation ordinance requiring the construction of a subway by the railroad company, to relieve the company froin the expense of constructing and maintaining the approaches to the subway, including the paving of the approaches, and such ordinance, when accepted and acted upon by the company, constitutes a binding contract.
APPEALS from the County Court of Macon county; the Hons. O. W. Smith and FRED C. Hill, Judges, presiding.
CREA & Housum, for appellant E. B. Pryor, receiver.
OUTTEN, EWING, McCULLOUGH & WIERMAN, for appellants the Cincinnati, Hamilton & Dayton Railway Company et al.
William J. Carey, Corporation Counsel, (BALDWIN & Carey, of counsel,) for appellee.
Mr. Justice VICKERS delivered the opinion of the court:
This was a proceeding in the county court of Macon county to levy a special assessment to pay the cost of paving the roadway of North Jasper street, in the city of Decatur, for its full width of thirty feet, between the curbs of the north line of East Eldorado street and the south line of East Condit street, including the roadways of all intersecting streets and alleys, with the exception of that part occupied by the rights of way of the Wabash Railroad Company and the Cincinnati, Hamilton and Dayton Railway Company. All of the preliminary steps necessary to the levy of a special assessment were properly taken. Objections were filed on behalf of the Cincinnati, Hamilton and Dayton Railway Company, and the receivers thereof, as to the tax against lot 1, block 1, of Cassell's Second addition to the city of Decatur, which was assessed at $580. This lot was assessed also in the name of the Wabash Railroad Company, and objections were therefore filed by the Wabash Railroad Company and its receiver also. This particular lot is known in the record as tract "D.” Another small, three-cornered tract of land, one end of which fronts on Jasper street, is known as tract “A.” This tract was assessed as part of the Wabash railroad property. The tax upon this particular tract was afterwards stricken off on motion of the city and is not involved here. The Wabash Railroad Company was also assessed for all of block 24 of Carver's addition to the city of Decatur, except a
lot 140 by 65 feet in the north-east corner of said block. Block 24 is referred to in the record as tract "B." A fourth piece of property was assessed to the Wabash Railroad Company as tract “C,” which is immediately south of block 24. Tract "C" was assessed $1148.89. Legal objections were filed by the Wabash Railroad Company and the Cincinnati, Hamilton and Dayton Railway Company, by their respective receivers, upon the ground that the city of Decatur, by ordinance No. 158, passed on the 23d day of October, 1913, (which said ordinance is known as the subway ordinance,) had agreed with said railroad companies that the city of Decatur would at its own expense construct and maintain that portion of the roadway in North Jasper street described as the approaches to a subway which was constructed in said Jasper street under the several railroad tracks of the respective companies, where the same intersect the said Jasper street. Other objections as to benefits were also filed, all of which were overruled, and the record is brought to this court by the appeals of the two railroads concerned. The legal objections of both railroads were heard together by agreement and the appeals have been consolidated and will be considered as one case in this court.
In the view we have of this controversy it will only be necessary to consider the legal objections interposed by the appellants.
North Jasper street extends north and south. It is crossed, practically at right angles, by numerous tracks of the two appellant companies. The various tracks of the railroad companies in question occupy a space of something over three hundred feet at the point where they cross Jasper street. As originally constructed all of these tracks crossed Jasper street at grade. The city of Decatur, for the purpose of doing away with the surface crossing and in the interest of the safety of the public, passed a track elevation ordinance, known as ordinance No. 158. Since
the rights of the parties to this controversy primarily depend upon the construction to be given to ordinance No. 158 it will be necessary to set out its principal provisions.
Section 1 of said ordinance orders and directs the two appellant railroad companies to elevate the plane of their respective road-beds and tracks at their intersection with North Jasper street in the manner and upon the conditions specified in the said ordinance. Paragraph i of section i specifies particularly the manner of constructing the elevated tracks over said street, and, among other things, provides that there shall be twelve feet of clear head-room between the lowest point in the bridge floor and the grade line of North Jasper street as the same is established by ordinance No. 147, which said ordinance is referred to and made a part of said ordinance No. 158. Paragraph 2 of section i of said ordinance reserves the right to the city to thereafter require the elevation of the tracks of said railroads at any and all other public crossings within the limits of the city. The open space between the floor of the railroad tracks of the elevated structure and the surface of the roadway under the railroad tracks was obtained partly by the elevation of the railroad tracks and partly by depressing the street level by excavating a subway underneath the proposed elevation upon which the road-beds and tracks were to be placed. Paragraph 1 of section 3 provides that the depression of North Jasper street should be in accordance with the grade lines established by ordinance No. 147, heretofore referred to, and also provides that the width between the walls of said subway, measured at right angles to the center line of North Jasper street, shall be not less than forty feet, the width of the roadway in the subway to be thirty feet and the sidewalks on each side of said roadway to be five feet in width. The top of the finished sidewalks was to be at an elevation of four feet above the established grade of the roadway of the street. The sidewalks were to be constructed of concrete, in ac