Publisher's Synopsis
Excerpt from Street Railway Law, Vol. 2: A Digest of Important Decisions in All Parts of the Country, Covering the More Important Class of Cases Which Daily Arise in the Management of Street Railways for Managers and Claim Departments
The erection upon a public street of an elevated railroad imposes no additional servitude; where an additional use of a street has been granted by the city authorities to build and operate a street railroad an injunction will not be granted to restrain the construction or operation of the road at the suit of an abutting property owner until the resulting dam ages to his property are ascertained and paid, but his rem edy is by action at law for such damages.
The proposition that a railroad unlawfully in a street is a public nuisance and liable as such to be abated at any time, and therefore a recovery for damages can only be had to ithe time of bringing the action is untenable; the injury would be a continuing and permanent one; therefore a sin gle recovery can be had for the whole damages, present and future. The abutting property owner having a complete remedy at law, courts of equity will not, upon his allegation that the ordinance authorizing the construction is illegal, enjoin the defendant from proceeding until the question of illegality can be litigated and determined, but will remit him to his action at law.
In delivering the opinion of the Court, Justice Wilken said.
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