FRANKLE V. JACKSON. (Circuit Court, D. Colorado. January 9, 1888.) TRESPASS-ORIGINAL ENTRY-SUBSEQUENT USER-LIMITATION OF ACTIONS. In an action against a railroad company for damages to plaintiff's hotel property, caused by a main and side track on the street in front thereof, and for loading and unloading cars, and allowing them to stand on the tracks, held, where the damages, as to the main track, are barred by the statute of limitations, plaintiff may recover, for the side track, such damages as are not due to the main track. At Law. Action for damages. Plaintiff, Frankle, sued defendant, Jackson, receiver of the Denver & Rio Grande Railroad Company, for damages to her property caused by laying of tracks on the street in front of her property, and the use of them. Trial to the court, and judgment for plaintiff for $300. Browne & Putnam, for plaintiff. E. O. Walcott, for defendant. BREWER, J. This case, which is an action for damages to plaintiff's lots and buildings in this city, caused by placing a railroad track and side track on the street in front thereof, and by the loading and unloading of coal cars, and permitting them to stand an unreasonable length of time, thus converting the street into a coal-yard, came before me last spring on a demurrer to the answer. 30 Fed. Rep. 398. I then ruled that so much of the complaint as counts on damages for the unlawful entry in respect to the main track, was barred by the statute of limitations, that having been made in 1871, which left the case one simply for damages for the construction of the side track, and for improperly permitting cars to remain on the track, and for using the street as a coal-yard. The case on its merits was tried last Friday, and tried before me without a jury, and, in order that I might be thoroughly advised, I was taken to the premises and examined them with counsel. The side track in front of the plaintiff's premises deflects from the main track but slightly, and yet it is an additional track, which, of course, in the management of the railroad, brings more cars, induces the leaving of standing cars more often, and for a greater length of time, so that it is fair to say that there is some damage caused by the putting in of that side track. And, for at least five or six months of every year, according to the testimony, it is not an uncommon thing to switch cars onto this side track, and leave them there while coal is being unloaded for purposes of delivery to customers. Indeed, when we visited the premises, two cars were thus standing on the side track while coal was being unloaded into wagons. It is one of those cases where it is hard to reason out exactly what the damages are. It is a good deal as when you cut off a man's hand,-you cannot by any mathematical processes demonstrate the value of that hand; and the court, sitting as a jury, has only to exercise its discretion. and judgment, after examining the premises and hearing the testimony, as to what would be fair and reasonable compensation. I can but think, and I believe every one will agree with me, that it is a damage to premises used, as these, for hotel purposes, to have a railroad track running up and down the street in front thereof, and the more it is used, the more cars are permitted to stand there, the more it is an injury to the premises. And yet I think the main damage in this case arises from the construction of the original track; and that was in 1871, and must be considered barred. The plaintiff sues for $11,000. Of course, in that she claimed and undoubtedly relied largely on the injury to her premises from this main track, which turned that street largely away from its ordinary use for vehicles, and to railroad purposes. I think if the plaintiff is awarded $300 she will receive compensation for all the damages which the property has sustained from the placing of this side track, which exists for only part of the distance in front of her property, and for the injury which the use of the track, for unloading cars and standing cars, has caused. So judgment will go in her favor for that amount. LINDQUEST v. UNION PAC. Ry. Co. (Circuit Court, D. Colorado. January 9, 1888.) 1. TRESPASS-ORIGINAL ENTRY-USER-PLEADING. In an action for damages caused by the unlawful occupation by a railroad company of the street in front of plaintiff's premises, it appeared that one paragraph of the complaint claimed for the unlawful use, after entry; and, in another, counted for an original entry. Held, that the demurrer to an answer, which presented allegations against an action for original entry, should be overruled. 2. SAME. On motion by defendant for judgment on the pleadings, the answer presented allegations against an action for original entry, and the petition claimed damages for both the original entry and for the unlawful use, after entry, by the defendant railroad company. Held, the motion would be denied. At Law. On demurrer to complaint, and motion for judgment. The plaintiff, Lindquest, brings this action against the Union Pacific Railway Company, defendant, for damages caused by the occupation of the street by defendant in front of plaintiff's residence. Browne & Putnam, for plaintiff. BREWER, J. In Lindquest against the Union Pacific Railway Company there is a demurrer to the second count in the answer, as well as a motion by the defendant for judgment on the pleadings. The action is one for damages, caused by the occupation of the street, in front of the plaintiff's residence, by the railroad company, defendant. In cases of that kind, as I ruled in the Frankle Case, ante 371, where the action is for an unlawful entry upon the street, and the placing of the track there in the first instance, there arises at the time the wrong is done a single cause of action for the diminution in value of the premises, in which action all the damages caused by such occupation must be estimated, and recovered, and there is no continuing wrong out of which an action springs from each day's occupation of the street. And, on the other hand, where the gist of the complaint is not the unlawful entry and occupation of the street, but the unlawful use of the track in permitting cars to stand upon it, in using that track and its surroundings as a yard for loading and unloading cars, that, being a wrong temporary and fugitive in its nature, is one which subjects the wrong-doer to an action whenever and as often as he commits such wrongs. Now, the question is, what is the character of this complaint? The gist of it appears in the fourteenth paragraph: "And the plaintiff avers that at all times since, to-wit, the first day of May, 1880, the defendant has been the owner or in the use and occupation of the railway track, for three rails for wide and narrow gauge cars, running through and along said Wynkoop street in front of said lots, and within twenty feet of the front line of said lots; that during all the time since last-named date said defendant has used said track for railway purposes, and for running thereon trains of cars propelled by steam, and has converted said street in front of said lots into yards for loading and unloading cars, and for standing to load and unload cars on, whereby access to and from his said premises has been cut off and made dangerous and inconvenient, and the quiet and comfortable occupation invaded by the noise of running cars, and the security endangered by live sparks from its engines." The gist of that is, not for the unlawful entry in the first instance, but for the unlawful use after entry,-the use for loading and unloading cars, permitting cars to stand thereon. It seems to me that that is one of those temporary wrongs on which a cause of action arises as often as the wrongs are committed. It is true, in the last paragraph the plaintiff also alleges that "the said street, long before it was occupied by said railway track, had been possessed and improved by the said city, and that the defendant, without any lawful authority, without any proceeding to condemn the right of way thereon, without the consent, and against the will, of the plaintiff, or any of his grantors, without compensation to any person for such use as aforesaid, occupied the same for its private gain." That suggests an attempt also to recover for damages in the original unlawful entry, and it may be that the plaintiff has endeavored to unite the two causes of action in the one complaint. * * * The second count of the answer, which is challenged by demurrer, contains allegations which might properly be presented as against an action for original entry; thus, that the supposed railroad track alleged to have been constructed in said street was so constructed in or along said premises described in said complaint before plaintiff acquired title thereto, or any part thereof, and that defendant and its grantors now have, and had at the time of the construction of said supposed track, full right and authority to construct, maintain, and operate said supposed railroad track on said street, and that the original owners were all compensated for such entry; also that the track was constructed under authority given by the city of Denver. Now, so far as those allegations are supposed to present any defense to a cause of action for the unlawful use of the track, it seems to me they do not. They simply tend to show that the original entry and occupation of the street were authorized, or, at least, that the plaintiff has no right to recover for them. Inasmuch as the petition seems to count in the last clause also for an original entry, this would, to that part of the petition, be a defense. So I think the demurrer will have to be overruled. NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS v. BUTLER. (Circuit Court, D. Massachusetts. January 12, 1888.) JUDGE-APPOINTMENT-DISABILITY TO HOLD COURT-REV. ST. U. S. §§ 591, 596. Rev. St. U. S. § 591, enacts that when any district judge is disabled from holding court the circuit judge of the circuit in which the district lies may appoint the judge of any other district in the same circuit to discharge the duties of the disabled judge, and that the "appointment shall be filed in the clerk's office, and entered on the minutes of the said district court," etc. An appointment under section 596 was filed in the office of the clerk of the circuit court. Held, that it should have been filed in the office of the clerk of the district court, but that the appointment was complete before filing, and that the failure to file as directed did not invalidate the appointment. At Law. On motion in arrest of judgment. This action was brought by the National Home for Disabled Volunteer Soldiers against Benjamin F. Butler. The defendant moved in arrest of judgment. George P. Sanger, for plaintiff. Benjamin F. Butler and E. M. Johnson, for defendant. COLT, J. The claim that the judge who presided at the trial was not duly appointed for that purpose is based upon sections 591 and 596 of the Revised Statutes, which, so far as they relate to this question, are as follows: "Sec. 591. Where any district judge is prevented, by any disability, from holding any stated or appointed term of his district court, or of the circuit court in his district in the absence of the other judges, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to the circuit judge, or, in his absence, to the circuit justice of the circuit in which the district lies, such circuit judge or justice mày, if in his judgment the public interests so require, designate and appoint the judge of any other district in the same circuit to hold said courts, and to discharge all the judicial duties of the judge so disabled, during such disability. Such appointment shall be filed in the clerk's office, and entered on the minutes of the said district court, and a certified copy thereof, under the seal of the court, shall be transmitted by the district clerk to the judge so designated and appointed." "Sec. 596. It shall be the duty of every circuit judge, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section five hundred and ninety-one, the district judge of any judicial district within his circuit to hold a district or circuit court in the place or in aid of any other district judge within the same circuit. * The facts are that in pursuance of section 596 the circuit judge designated and appointed Judge CARPENTER to hold the term of the circuit court in aid of the district judge for this district by an instrument in writing, duly signed, which instrument was filed in the office of the clerk of the circuit court. The defendant claims that the instrument of appointment should have been filed in the office of the clerk of the district court, and that the failure so to file it makes the appointment invalid and of no effect, so that the judge had no authority to preside in the circuit court. * * It may be assumed, in the first place, that the appointment must be made or evidenced by writing, since it is directed that the "appointment shall be filed in the clerk's office." The provision in section 591 clearly provides, I think, that the filing shall be in the clerk's office of the district court. The words "of the said district court" limit the words "clerk's office" as well as the word "minutes." It therefore remains to ascertain the meaning and scope of the words "in the manner * provided in section five hundred and ninety-one;" or, in other words, to decide what things shall be done in order to comply with the requirements of section 596. While it would hardly be doubted that an appointment under section 596 should be in writing, still it seems to be evident that the language of the appointment should be different. Under section 591 the designation may be to hold both courts, while under section 596 it seems clear that the designation should specify whether the judge appointed was to hold the circuit or the district court, and whether he was to hold it in place of the judge of the district or in aid of him. There might be an argument that the words "in the manner provided,” etc., should be construed, as to the place of filing the paper, to mean "in the manner mutatis muntandis," so that not only the words of the appointment, but also the place where it should be filed, should vary according to the circumstances and the convenience of the case. Doubtless, as the plaintiffs contend, there must be some variation to meet the circumstances of the case; and perhaps, as to the place of filing, I might safely act on a presumption that the intention of congress was to provide for filing the papers in what is obviously the most convenient place, were it not for one provision in section 591. It will be seen that a judge appointed under section 591 may sit in the circuit court although his appointment is filed only with the clerk of the district court. There is therefore no reason to think that the intent of the legislature will be contravened by such a practice under section 596. I am, therefore, inclined to think, although in my view it is not necessary absolutely to decide, that the designation should have been filed in the office of the clerk of the district court. But I am of opinion that the failure to file the paper in the proper office does not invalidate the appointment. The provision is di. |