son intervening with a valid claim or title created prior to such seizure.

Some question appears to have arisen concerning the effect of a confusion of goods by intermixture. It would be difficult to create such a confusion among such articles as those in controversy, and it does not appear, in fact, that any serious difficulty was found in distinguishing the property. The questions, in our judgment, need not be considered in that point of view. But as the legal propositions themselves are somewhat intermingled, they can be more satisfactorily disposed of together than separately. It was held in Holmes V. Hall, 8 Mich. 66, that an agreement whereby a creditor was authorized in a future contingency to take possession of a stock of goods and sell them, but which contained no terms of transfer or hypothecation, was not a mortgage, but was only a beneficial power, which could not fix any rights in the property before seizure. A similar doctrine was held in Dalton v. Laudahn, 27 Mich. 529, where the power was contained in a lease. But it was further held, in the latter case, that the agreement was valid and operative according to its terms, and no good reason occurs to us, and we think there is no satisfactory authority why it should not be. Parties can, if they choose, make contracts of agency, bailment, or other authority as broadly as they choose, where no legal policy and no paramount right intervenes before their enforcement. And if those agreements contain a license or permission to take possession and sell, no court can deny the validity of the possession and sale if the parties are capable of contracting and no other rights intervene. Cases are not rare in which tenants of lands have been compelled to perform their stipulations, to leave certain live stock or other property on the estate at the end of their leases. And trusts in personal property are of every day occurrence in which the specific property is constantly changing while the fund remains subject to the duties and burdens of the trust. Partnership operations are notable instances of this kind.

The present mortgage is one where the parties both agreed that the primary fund should be kept good by successive sales and re-investments, which it is evident was necessary, in the first place, to enable Shnyder to pay for his goods, and, in the second place, to make Illenden & Collver secure by replacing what had been sold. The agreement was fair and intelligible, and it is as easy to identify this fund as any other which changes its shape, but not its legal identity, by re-investment.

If the mortgage had not authorized sales, and the property had been sold notwithstanding, a court of equity would find no difficulty in pursuing the trust fund, so long as it could be identified, into the property wherein it had become re-invested, and it pursues this course because the new property is regarded as belonging to the trust as effectually as the old. And this pursuit of trust funds is not confined in all cases to the possession of the original wrong-doer. Persons taking with notice are in the same position in a large class of

cases.

In the present case, the parties have seen fit to stipulate expressly that the body of the fund may be changed without losing its identity, and that the mortgagee may deal with it as if unchanged. The various purchasers have made their purchases subject to this arrangement, and are estopped from denying it. The mortgagees, in taking the property, did only what Shnyder agreed they might do, and what the several purchasers also understood they were authorized to do. A purchase of property subject to such a power would certainly be regarded in equity as liable to be subjected to a disposition in furtherance of the trust. Every one taking it on those terms becomes, in equity, a trustee of the fund. And where the contract itself

points out the way for the enforcement of rights by act of the party, and he has only done what it was agreed he might do, it would be unjust and absurd to hold him responsible as a wrong-doer as against those who were bound by the terms of their own holdings to allow him to do it. If the additions to the stock made by the later purchasers had exceeded in value the amount of sales from the stock, there might, possibly, be some difficulties which do not exist here. But the sales largely exceed the additions. For any sale beyond such articles as raised the amount of the mortgage with interest and expenses, the mortgagees were liable. But this the court distinctly charged, and we find nothing to indicate that this point was not fairly placed before the jury. They were expressly told that the sale of a single article, after the requisite sum had been raised, would be unauthorized.

Some questions were raised concerning the right to foreclose before the maturity of the mortgage. It is claimed that, under the terms of the mortgage, it did not all become due on the failure to insure alone, or on the reduction of the stock alone, below $3,000. This, we think, is not so. It is true that in the early part of the mortgage, the covenants to insure and to keep up stock are united, and it is said "a breach of the last two covenants shall cause the whole sum secured to become due and payable." Assuming-what we very much doubt that this, by itself, technically requires a double breach, yet it must be read with the rest of the mortgage. In the proviso, or defeasance, where it is proper to look for the careful statement of the mortga gee's rights, there is no ambiguity. The remedy is expressly given on a breach of either one of the two conditions.

We also think there was no error in the instructions given concerning what would amount to a waiver of the condition that a sale, except at retail, without written consent, would operate as a forfeiture. The court told the jury that the condition might be waived, but that they could not find such a waiver unless they found the property was sold with the knowledge and consent of the mortgagees. This was certainly going as far as could be asked. If the jury have not taken a proper view of the testimony, their course can not be reviewed in this court. Their finding has not been disapproved by the court below, and we may fairly presume it was justified.

The objection to evidence of the insurance of the property by the mortgagees for their own protection is not well taken. Where there is a covenant to insure and it is not kept, the mortagee may very properly insure and can add the premium to his debt, if fair and reasonable..

Objection was also made to the reception of testimony of certain remarks of A. B. Moore, the husband of Nancy Moore, the plaintiff, as not res gesto, and therefore incompetent. One of these was a declaration made about the time of the removal of the goods to his wife's store, that he had got a whip row on Illenden & Collver and intended to keep it. The other was that the mortgage was worthless, and he was going to beat them out of the mortgage if he could. The evidence showed, or tended to show, that in the transaction of the business of Mrs. Moore she was practically a cipher, and that Moore had entire control and did as he chose. If this testimony had any materiality at all, it was to show notice of the defendant's rights, or such conduct as would justify them in proceeding to an enforcement of them. In both these particulars it was admissible, under such circumstances, to urge and assume that she knew, what he knew and intended what he intended, and perhaps still further, to urge that she was merely a figure-head, and her husband the actual dealer. Where husband and wife are engaged in business on

LIABILITY OF CREDITOR.-A creditor who proceeds in a state court by a writ of attachment on which he seizes the property of his debtor and realizes his judgment obtained in such a suit by a sale of the property attached, is liable to the assignee in bankruptcy of the debtor appointed under proceedings commenced in the bankruptcy court within four months of the levy of the attachment, although the assignee did not appear or defend the attachment suit or make any attempt to arrest the attachment proceedings. Wilson v. City Bank, 17 Wall. 473, 2 Cent. L. J. 40; and Eyster v. Gaff, 91 U. S. Rep. 521; 3 Cent. L. J., 250, distinguished.

This case comes before the circuit court on a writ of error to the district court. The plaintiff in error as assignee of Browne, a bankrupt, sued the defendant Johnston for the value of goods seized under a writ of attachment against Browne in favor of Johnston in the state court, and sold under the proceedings in that case for Johnston's debt. The district court, to which the case was submitted without a jury, made the following finding of facts, and conclusions of law, on which it rendered judgment in favor of defendant.

1st. Wm. P. Browne, the bankrupt, resided at Tama county, Iowa, where also live the parties to this suit. On the 23d of September, A. D. 1872, defendant Johnston commenced suit against Browne in the District Court of Tama County, upon an alleged indebtedness, due upon the sale of grain, and sued out of said court in said suit a writ of attachment, which, under the direction, and by the personal procurement of the defendant Johnston, was levied upon property described in the petition.

2d. That on the 21st day of January, A. D. 1873, and within four months of the suing out of said attachment, a petition in bankruptcy was filed by certain of Browne's creditors, in the United States District Court, from whence this suit comes, praying that Browne be adjudged a bankrupt.

3d. That on the said 21st day of January, A. D. 1873, Browne was served with the original notice in the suit pending in the state court.

4th. Than on the 25th day of January, A. D. 1873, the order to show cause in the bankruptcy proceedings was duly issued, was served on the 8th day of February, A. D. 1873, and on the 14th day of February, A. D. 1873, the said Browne was, by order of the court sitting in bankruptcy, duly adjudged a bankrupt.

5th. On the 18th day of February, A. D. 1873, Browne, the bankrupt, filed in the District Court of Tama County, his answer in the suit brought against him by Johnston, contesting the claim upon which the suit was founded. On the 25th day of February, A. D. 1873, a trial was held in that court, when the issue above joined was found for the plaintiff Johnston, and a judgment rendered in his favor for $2,264 15-100 and costs, and an order for a special execution to sell the attached property.

6th. On the 28th day of February, A. D. 1873, special execution was issued, which, under the direction and procurement of Johnston, was levied upon the attached property, as the property of Browne, and afterwards, on the 22d day of March, A. D. 1873, the sheriff, under Johnston's direction, sold the property as belonging to Browne; that Johnston was present at the sale, bid upon some of the property offered, and received from the sheriff the avails of the sale. That the proceeds amounted to $2,349.40, and the costs of the suit and sale were $177.50.

7th. That on the same 22d day of March, A. D. 1873, plaintiff was duly elected and qualified as assignee in bankruptcy of the estate of said Browne, and received his deed of assignment as provided by law.

8th. That afterwards, and previous to the commencement of this suit, plaintiff in error made demand upon said Johnston for a return of said property, which demand was refused, and the action commenced.

9th. That at the time Johnston sued out the attachment, he had reasonable cause to believe Browne was insolvent.

10th. That the defendant directed the sheriff in the levy of the attachment and execution, and that if Johnston is otherwise liable, his direction and control over the sheriff sufficiently appears. The court below found as conclusions of law:

1st. That the jurisdiction over the property acquired by the state court in the attachment proceedings was not divested by the bankruptcy proceedings.

2d. That under the judgment and order of the state court the property attached was adjudged to be the property of the defendant in that case, Browne; and that his assignee in bankruptcy is estopped from questioning such adjudication, and that defendant Johnston obtained a good title to the said property under said sale, and that he is not liable to plaintiff in this action for either the property or its proceeds.

3d. I find the defendant is entitled to judgment for costs in this case against the plaintiff. The plaintiff sued out a writ of error.

MILLER, Circuit Justice: The question thus presented to me for consideration is very clear and simple in its statement, but none the less difficult of solution. It is whether a party proceeding by a writ of attachment, and seizing the goods of his debtor and realizing by judgment and sale under execution the whole or part of his debt, is liable to an assignee in bankruptcy of the debtor appointed under proceedings instituted in the bankruptcy court, within four months of the levy of attachment,though no appearance or defence was made by the assignee in the attachment proceeding, or any attempt to arrest them. I say the question is one not easy of solution, because it occupies debatable ground in which two important principles of the bankrupt law seem to come in conflict. Namely: the principle that no person shall by a writ of attachment against the bankrupt obtain a preference for his debt over other creditors, unless issued more than four months before the commencement of the bankruptcy proceedings; and the principle that the state courts are not divested of their jurisdiction of cases pending in them by the initiation of bankruptcy proceedings against one of the parties to such a suit, unless it be brought to the no

tice of the state court by some appropriate proceeding in that case.

The first principle rests upon the language of Sec. 5044 of the Revised Statutes, which is part of Sec. 14 of the original bankrupt law. It reads as follows: "As soon as the assignee is appointed and qualified, the judge, or when there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto; and such assignment shall relate back to the commencement of the proceedings in bankruptcy, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee, although the same has been attached in mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of the bankruptcy proceedings."

The other principle rests upon the fact in this case, that no attempt was made by the assignee, or any one else, to bring to the notice of the state court the fact that the debtor had been declared bankrupt, and that it proceeded in its usual course of judgment, and execution of that judgment, without any apparent error or defect of jurisdiction in these proceedings; and upon certain opinions of the supreme court sustaining its right to do so.

If there can be found any middle ground by which both these principles can be left to their just and proper operation, we ought to adopt it in the solution of this case. I think there is such a ground. The two opinions of the supreme court, in which the authority of the state courts has been most firmly sustained, were probably delivered by myself. I mean the case of Wilson v. The City Bank, 17 Wall. 473, and the case of Eyster v. Gaff et al. 91 United States Supreme Court Reports (1 Otto), 521.

But in both these cases the proceedings of the court which were upheld were the exercise of the regular and ordinary powers of the court in rendering a judgment or decree against the party before it. And I still adhere to the doctrine that if, by the usual process of the court, a plaintiff secures a judgment against the bankrupt, which judgment is of itself a lien, or by virtue of the levy of an execution becomes a lien, before the commencement of the bankruptcy proceedings, that lien must prevail; or when the state court, in pursuance of a jurisdiction iuvoked before the bankruptcy proceedings commenced,enforces a lien which has by the bankrupt law itself a priority over other creditors, as a mortgage or other specific lien, its proceedings are valid and effectual, notwithstanding the commencement of proceedings in bankruptcy while they are pending. But there is a very marked difference in the favor with which such a lien should be regarded, and a lien obtained by the extraordinary and summary proceeding of attachment, in which the plaintiff, being made aware of the failing condition of his debtor, takes the remedy into his own hands, and by an ex parte proceeding appropriates by his own volition the debtor's property to the exclusive payment of his own debt. And it was precisely this proceeding which the provision I have cited from the bankrupt law was intended to prevent, by declaring that all such attachments are dissolved by the assignment of the bankrupt's property, unless made within four months next preceding the commencement of the bankrupt proceedings.

The purpose of the act was to put a creditor, who undertook to secure a lien by attachment, in precisely the same condition as one who took a preference or lien by the consent of the debtor. In both cases the creditor proceeded at his own hazard. If the debtor escaped the bankruptcy court for the prescribed time, the pre

ference or lien remained valid. If he did not, it is void absolutely. The language of the section I have cited is very strong in this direction, if, to repel the idea that the attachment is merely voidable, it is declared that the making of the deed to the assignee shall by operation of law vest title to property in the assignee, and dissolve any attachment made within the four months. I think this was intended to mean that in the contingency mentioned the attachment was ipso facto dissolved, and the property attached became freed from the effects of the suit, and that it required no judicial proceeding to restore it to that condition.

This view of the matter does not divest the court in which the attachment suit is pending of its jurisdiction over the case and the parties. It merely declares that the title to the attached property having been vested, by written judicial proceeding, in the assignee, the lien of the attachment is at an end.

The court can proceed to judgment against the party, and issue its execution. If property liable to it can be found, it can be enforced. If not, it is like the judgment in any other case against a debtor without means. And there is no hardship in this, for the reason that the attaching creditor was informed by the provisions of the bankrupt law that he initiated his attachment proceeding subject to its being rendered ineffectual by proceedings in bankruptcy within four months. This view, I think, reconciles the two opposing principles. It leaves the general jurisdiction of this state court, or any other court in which the attachment suit is pending, unaffected; and it can proceed as if no bankruptcy proceeding had been commenced, and its judgment is valid in every other respect, except that the lien on the property is gone. It gives full effect to the purpose of the bankrupt law, that no such attachment shall prevail, when instituted within four months before that law is called into operation, and in subordination to which principle the attaching creditor instituted his proceedings. The present case very forcibly illustrates the necessity of adopting this rule, if full effect is to be given to the provision of the bankrupt law; for the finding of facts shows that though the bankrupt proceedings were instituted within four months after the levy of the attachment, the assignee was not appointed until the very day the property was sold under Johnston's execution. It was, therefore, impossible that the assignee could have interposed at any stage of the proceeding in the state court to bring to its notice the bankrupt proceedings, or to procure an order dissolving the attachment, and the creditors whom he represents were without remedy, notwithstanding the positive declaration of the bankrupt law. I am of opinion that, in the facts found by the district court, the defendant, Johnston, was liable for the value of the goods, as evidenced by the sum for which they sold. The judgment of the district court is reversed, and the case is remanded to the district court with directions to enter a judgment against him accordingly.

THE Supreme Court of Minnesota, have recently held, though very reluctantly, that under the state constitution, to be eligible to the office of county attorney, a person need not be an attorney, or have been admitted to the bar.

IN Hatch v. Mutual Life Ins. Co., 5 Ins. L. J. 925, the Supreme Judicial Court of Massachusetts has held that where death resulted from an illegal operation voluntarily submitted to by the insured to procure abortion, public policy precluded the company from insuring against the consequences of such an act, and no recovery could be had. See Amicable Ins. Co. v. Bolland, 4 Bligh. 194; How v. AngloAustralian Life Ins. Co., 30 L. I., Chy. 511; Moore v. Woolsey, 4 E. & B., 243.

SHELDON, J., delivered the opinion of the court: The Ottawa, Oswego and Fox River Valley Railroad Company, was chartered June 21, 1852. It constructed a railroad through the city of Ottawa. From the Illinois river north it passed over a public street known as Walker street, in pursuance of an ordinance of the city council of the city of Ottawa, authorizing the construction of a railroad along that street. The plaintiff was the owner of lot 8 in Block 1 in Walker's addition to Ottawa, which abutted upon that street, on which lot he had a dwelling house in which he resided, and another smaller building which he rented.

The lots were laid out before the street was dedicated, and no portion of the street was taken from these lots, so that the fee of the street was never in the plaintiff. The road was constructed and in operation along the street prior to the adoption of the present consitution of the state. The Ottawa, Oswego and Fox River Railroad Company, on the 20th day of August, 1870, executed a lease of this road to the Chicago, Burlington and Quincy Railroad Company, and surrendered the possession thereof to the latter company on the 20th day of January, 1871, since which time the road has been operated by the last named company. Plaintiff brought this suit against the C. B. & Q. R. R. Co., claiming damages to his premises aforesaid, arising from the construction of the road along the street, and the maintenance and operation of the road thereon. A trial had resulted in a verdict and judgment against the defendant, and it brings this appeal.

The track of the railroad in front of this lot is laid upon trestle-work, extending from the railroad bridge across the Illinois river on the south, to a point several rods north of the lot. The top of the trestle-work at the south-east corner of the lot is nine and one-third feet above the street, and thence north, the height gradually decreases until at the north-east corner of the lot it is about six feet above the street. This trestlework is the approach of the railroad to the railroad bridge across the river. From the east front of the lot to the west rail of the railroad the distance is 31 feet 4 inches. A short distance north of the lot is a passenger and freight depot, and trains stopping there were run down and allowed to stand in front of appellee's premises, and dust, smoke and cinders from the cars and locomotives passing and standing upon the track, when there was an east wind, would be blown into appellee's houses and upon his premises. Vehicles were prevented by the trestle-work from crossing the street, except at the south end, where they could pass under.

These are plaintiff's chief causes for complaint. There are two questions here presented: one upon the rejection of testimony, the other as to the rule of damages adopted by the court below.

The court permitted the plaintiff to prove what in the opinion of witnesses the rental value of the place would have been without the railroad, and what it was with the railroad. The defendant offered to prove in cross-examination, and by direct evidence, that there were a gas factory and a starch factory near the plaintiff's premises, which were offensive things and made the premises undesirable for any one to occupy, and tended to depreciate their rental value. The court excluded the testimony. The rental value of the premises having been made by the plaintiff a subject of evidence, it was admissible in rebuttal to show the existence of these other causes, which affected such rental value, to lay the foundation for a judgment that the depreciation of rental value was not wholly due to the railroad, and to what extent these other causes might have contributed to produce such result.

The plaintiff gave testimony to the effect, that in his opinion the trestle-work need not have been so high, that he did not believe it necessary to have it there. The defendant offered to prove by civil engineers, that the building of the trestle-work in the manner in which it was built was necessary, in order to cross the river and overcome the grade on the opposite side; but the court refused to admit this testimony. The testimony given by the plaintiff tended to show that the company had been guilty of negligenee and want of proper care in constructing the road in a proper manner, so that the plaintiff was unnecessarily injured. It was only competent for the defendunt to rebut this by showing that the trestle-work was necessary, that there was no want of proper skill and care in the construction of the road in such manner, and that plaintiff was not needlessly injured. We think that upon the theory, on which the case went to the jury, both descriptions of testimony were improperly rejected.

The Ottawa, Oswego and Fox River Valley R. R. Co., by its charter, had a legal right to construct and operate this railroad. The city council of Ottawa was vested with the exclusive control and regulation of the streets of the city. It granted to the railroad company permission and authority to construct, use and maintain a railroad track upon this Walker street, in front of the plaintiff's lot. The trestle-work in question, we may suppose, as was offered to be proved, was a necessary erection in the proper construction of the railroad.

It has been the long-settled doctrine in this state, that where, by the charter of a city, its local authorities are vested with exclusive control over the streets, and those authorities grant permission to lay down railway tracks along the street, the owners or occupants of property fronting on such street can not enjoin the laying of such tracks nor be allowed any damages or compensation for such use of a street. Moses v. The P. F. W. & C. R. Co. 21 Ill. 516; Murphy v. The City of Chicago, 29 Ill. 279, and see Stone v. F. P. & N. W. R. R. Co. 68 Ill. 394.

The court below, against the objection of the defendant, permitted evidence to be given of what would have been the value of the property and its rental value without the railroad, and what they were with the railroad. This was adopting an erroneous rule of damages, and this may be said without reference to the question of the bearings of the provision of the constitution of 1870, that "private property shall not be taken or damaged for public use without just compensation," upon a railroad constructed before the adoption of the constitution. In Stone v. F. P. & N. W. R. R. Co., supra, in respect to a railroad constructed since the adoption of

the constitution of 1870, while it was held there was a right of recovery against a railway company for a direct physical injury done to adjacent property by throwing smoke and cinders upon it, it was said there were various annoyances and inconveniences arising from the railroad which would cause damage to property, for which there would be no remedy. For any damage on account of the trestle-work in this case we are of opinion there was no right of recovery.

Recognizing, as the court below did, the rule of damages to be the difference between the value of the property without the railroad, and with the railroad, would be to allow a recovery for damage to the property from all causes whatsoever, by reason of the railroad, and so of the rental value in such respect. If there be any liability in respect of the dust, smoke and cinders, as to which, under the circumstances of the case we express no opinion, the injury should have been confined to the question of what material damage, if any, was done to the property by the throwing of dust, smoke and cinders upon it. For the errors indicated, the judgment will be reversed, and the cause remanded.

JUDGMENT REVERSED.

NOTE.-To be a nuisance, a thing must be both wrongful and harmful. Many things that are an annoyance to private individuals, are for the public good or convenience. Individual rights are circumscribed on every hand for the public good, and while compensation is not given in terms, yet the benefits received are supposed to fully recompense any loss of individual freedom. It was long ago laid down by Bracton that one who confers benefit on the public within his own land, does no wrong to his neighbors, though they suffer harm thereby. Bracton Lib. 4, c. 44, p. 232 b. The same doctrine was recognized in Bristol v. Ousatonic Water Company, 42 Conn. 403-13, which was a common law action against the defendant for wrongfully erecting and maintaining a dam across the Housatonic river, whereby plaintiff's right of fishery was impaired. The dam was authorized by the charter of the defendant. The court said: "It is absurd to say that the defendants were justified in erecting and maintaining the dam, and still are liable in damages for having erected and maintained it." And it was accordingly held that the action would not lie.

No little conflict and confusion exists in the adjudged cases on the general question involved in the principal case; but it is believed that the weight of authority is largely with it, and, on principle, its soundness is, it seems to us, beyond question. Without attempting anything like a complete citation of the authorities bearing upon this question, we will refer briefly to a few of the leading cases, and consider some of the more important distinctions which have been maintained.

1. Where the fee of the street is in the city. There is an irreconcilable conflict on the question as to what vests the fee of streets in the city in which they lie. But the authorities generally concur in holding that where the fee is in the city, the legislature may authorize a railroad to be constructed along the street, without compensation to abutting owners for either direct or consequential damages. As was said in The People v. Kerr, 27 N. Y. 209, "The legislature has entire control of any public rights in the highways, or streets, and what it authorizes, so that it be constitutional, cannot be complained of by the attorney-general or any one else." This doctrine was re-affirmed in Kellinger v. Forty-second street, ete., R. R. Co., 50 N. Y. 206, where it was said: "The fee being in the public, the legislative authority can lawfully consent to modify, regulate or enlarge its use for the benefit of the public. If these positions are sound, the corporeal rights of property of the plaintif have not been impaired. Neither his property, nor any right of property has been taken from him or injured, and his injuries are referable to that class of incidental disadvantages to which he is subjected resulting from the lawful exercise of the absolute power of control vested in the state, in connection with the title to the fee of the land." The previous cases in that state in apparent conflict with this rule were distinguished and limited.

Numerous cases in Iowa lay down the same rule. Slatten v. Des Moines Valley R. R. Co., 29 Iowa, 148, was an action to recover damages resulting to plaintiff by reason of the construction of an embankment made by defendants in a

public street of Des Moines in front of plaintiff's property. The defendant pleaded, among other things, a license for the city to build a bridge across the Des Moines river at the point in controversy, and alleged that the embankment was indispensable to the use of the bridge, and that in the construction of the embankment and approaches the defendant had acted in good faith and without negligence. Held, on demurrer, that the plea was good; "that the construction of the bridge and approaches being thus authorized, the railroad company were not liable for consequential damages resulting therefrom to a lot owner, in front of whose property an embankment had been thrown up in the proper construction of the bridge and approaches." This last case was cited with approval in City of Davenport v. Stevenson, 34 Iowa, 225. In City of Clinton v. C.R. & M.R.Co., 24 Iowa, 455, it was held that where the title to the streets of a city had been vested in fee in the corporation, the legislature might authorize their use by a railroad company withont the consent of the city and without compensation. But a public street or reservation cannot be conveyed to a railroad company for its exclusive and private use. Cook v. City of Burlington, 30 Iowa, 94. Lackland v. North Mo. R. R. Co., 31 Mo. 180; Savannah, etc., R. Co. v. Shiels, 33 Ga. 601.

But the ordinary use of a street by a railroad company is not a perversion of the highway from its original purposes, and any damage to property abutting on the street, resulting from such obstruction, is damnum absque injuria. Porter v. North Mo. R. R. Co., 33 Mo. 128; Lackland v. North Mo. R. R. Co., 34 Mo. 259. If there is no ground for interference on the part of the, state there can be no action on the part of the lot-owner. McLauchlin v. Charlotte, etc., R. Co., 5 Rich. (S. C.) Law, 583. The lot-owner must show that the railroad is a public nuisance and that he has suffered special damage. Black v. Phila. R. Co., 58 Penn. St. 249.

In his work on Municipal Corporations, Judge Dillon says: "SEC. 556. If the fee in the streets or highways is in the public, or in the municipality in trust for public use, and is not in the abutter, the doctrine seems to be settled that the legislature may authorize them to be used by a railroad company in the construction of its road, without compensation to adjoining owners, or to the municipality, and without the consent, and even against the wishes of either." The same doctrine was advanced in Moses v. Pittsburg & Ft. Wayne R. Co., 21 Ill. 522, where Catron, Ch. J., deliver. ing the opinion of the court, said: "It must necessarily happen that streets will be used for various legitimate purposes, which will, to a greater or less extent, incommode persons residing or doing business upon them, and just to that extent damage their property; yet such damage is incident to all city property, and for it a party can claim no remedy. The common council may appoint certain localities where hacks and drays shall stand waiting for employment, or where wagons loaded with hay or wood, or other commodities, shall stand waiting for purchasers. This may drive customers away from shops or stores in the vicinity, and yet there is no remedy for the damage. A street is made for the passage of persons and property; and the law cannot define what exclusive means of transportation and passage shall be used. *** To say that a new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because streets were not so used in the days of Blackstone, would hardly comport with the advancement and enlightenment of the present age." And to the same effect see A. & N. R. Co. v. Garside, 10 Kas. 552; Lexington etc., R. Co. v. Applegate, 8 Dana, 289; Hamilton v. N. Y. & H. R. Co., 9 Paige, 171; Wolfe v. Covington & R. Co., 15; B. Mon. 404: Rail. Co. v. Brown, 17 B. Mon. 762: Philadelphia and Trenton Railroad Co., 6 Whart. 25; Snyder v. Penn. R. Co., 5 P. F. Smith, 340; Phillips v. Dunkirk etc., R. Co., 2 Cent. L. J. 669.

*

A different rule was maintained in South Carolina R. Co. v. Steiner, 44 Ga. 546. In that case the fee to the street in question was conceded to be in the state, and it was admitted that the legislature of the state and the municipal authorities of the city had granted the railroad company permission to occupy the street, and that no compensation to abutters was provided for by statutory enactment. The court laid down the well-established rule that, "where property of the individual is not taken for the public use, the injury resulting from the legitimate exercise of a lawful employment working injury, is damnum absque injuria.” It was also said that on account of such legislative permission the occupation of the street by the railroad was not