FEDERAL,REPpRTER.

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 everyone agree with me, that it is a damage to premises used, as these, for hotel purposes, to have a railroad track runningup 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 niain 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 receive cotilpensation for the. damages whi.ch the property has sustained from the placing of this side track, which .exists for only part of the distance in front o.f her property, and for the injury which the ]lseof,the trapk, for unloading cars and standing cars, has caused. So judgment will go in hef favor for that amount.

will

LINDQUEST t1. UNION PAC.

Ry. Co.

(Oi'l'cuitOOU'I't"D. OolO7'ado. January 9. 1888.)

1.

TRESPASS-OlUGINAL ENTRy-USER-,-l'LEADING.

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, lU another, counted for an ori/l,'inal entry. Held, that the demurrer to an answer, which presented allegations against an action for original entry. should be overruled. .

S.

SAME.

On motion by defendant for judgment on the pleadings, the answer presented allegations agoainst 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 residenc,e. Browne Putnam, for plaintiff. Teller Orahood, for defendant

,

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 onefQr damages, caused by the occupation of the street, in front of the plaintiff's residence, by the railroad company" defendant. In cases of

BREWER, J.

LINDQUEST 'II. UNION PAC. RY. CO.

373

that kind, as I ruled in the Frankie Case, ante 371, where the action is for an unlawful entry upon the street, and the placing of the 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 damagE)s 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 twel1ty feet Qf 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 hisl$aidpremises 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 c::ount 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, !lnd that defendant and its grantors now have, and had at the time of the cl?nstruction of said supposed track! full

374:
right and authority to construct, maintain, and said snpposed railroad track on said street, and tbat the original' owhers were all com· pensated for'such entry; als6that tbe'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 bas po right t6reeover for them. Inasnluch as the petition seems to count in tbe last clauaealso for an original entry, tbis would, to tbat part of tbe petition, be a defense. So I think tbe demurrer will have to be overruled.

NATIONAL HOME FOR DISABLED VOLUNTEER SOLDmRS f7. BUTLER.'

1:6\'rcuit Oourt, D. MaBlJachu86U8. January 12, 1888.)
JODGJC':"':A.PPOIl¢'nlENT-DlBABILXTY TO HOLD COURT-REV. ST. U.

Rev. St. U. Be § 591. enacts' thatwben any district judge is disabled from holqingcourt tpe circuit judge circuit in wbich the district lies maYaPpoint the judge of any otber district in the same circuit to discbarge the duo ties of. tbe disabled judge. and that the "appointment shall be filed in t4e clE'rk's office, and entered on the minutes of tbesaid,district court." etc. An appointment under section 596 was tiled in the office of the clerk of tbe cirCUIt court. ',Held, that it should have b'een tiled in tbe 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.

591, 596,

At On ,motion in arrest of judgment. , This action ,was brought by the National Home ,for Disabled Volun..: teer Soldiersflgainst Benjamin F. Butler. Tbe defendant moved inar..,. rest of judgment. (feorge P. Sanger, for plaintiff. , Eerljamin, F·. Butler and E. M. Joh'n8lm, for defendant. ,Covr, J.The claim tbat whopresided.at the trial was not duly I1oppointed for that purpose is based upon sections 591 and 596 of tbe Revised Statutes, wbich, so far as they relate to this question, are as follows:
59l.Wbere any district judge is prevented. by Rny disability, from holding Iinystate9 or appointed term of his district court, or of the circuit court in his distric.t inthe absence of the other judgps, l\J;ld that fact is made, to appear by the qi'rtilicate of the clerk, undl'r the seal of the court, to the circuit jUdge, or, in 'l1is absenre. to the eil'cuit jUllticeof t'he circnit in Which the district lies,8uel'rcircuit judge or justice iuay, inn bis jtidglnent thepl1bllc interests so requtre.designate and appoint the judge: oj any othp! district in same circ:uit tp hol« saitl courts. and to disclmrgeaU the jUdicial dutie-so! . tbejudge so,di!l,llbled, during such disabilIty. Such appolntoU'nt shall be filed il! the clerk's and entered on the minutes, of the said district court, and a. certified copy thel:eof, under the of the COUI't. shidl .be-transmitted by thedistrict clerk to the judge so designated and appointed. to '
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