which is as follows: "The railroad corporation, across whose road another railroad or a highway is laid out, has the like right as all individuals or bodies corporate, owning lands or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures on the land, or changes in the surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition; but it is not entitled to damages for the interruption and inconvenience occasioned to its business, nor for the increased liability to damages from accidents, nor for increased expense for ringing the bell, nor for the risk of being ordered by the county commissioners, when, in their judgment, the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing the railroad, nor for the expenses of maintaining a flagman, alleged to be necessary to guard against the greater liability to accidents, occasioned by the obstruction of the view along its railroad at the crossing of a highway, by means of the abutments of the new railroad of the other corporation. The condemnation of such a right of crossing is for the benefit of the public. The compensation made should cover all loss and damage which may reasonably be expected. In estimating the amount of this compensation, in addition to the value of the land taken, the inconvenience caused by the operation of the second road, the increased difficulty of access to the first road, and the impairment of its capacity for doing business will be considered. Evidence of the amount of traffic is admissible to show the extent of the use. No compensation will be made for the necessity of stopping trains at the crossing, nor for reduction in hauling capacity, nor for increased danger of accident." Citing, Peoria & P. U. Ry. Co. v. Peoria & F. Ry. Co., 105 Ill. 110; Chicago & A. R. Co. v. Joliet, L. & A. Ry. Co., Id. 388; Massachusetts Cent. R. Co. v. Boston, C. & F. R. Co., 121 Mass. 124; Lake Shore & M. S. Ry. Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St. 604. Particular fact case as to measure of damages. Chicago, 1. & D. R. Co. v. Cedar Rapids, I. F. & N. W. R. Co., 86 Ia. 500 (53 N. W. Rep. 305).

Sec. 675. Crossing streets, highways and private ways. The rule that allows the construction of streets and highways across railroad tracks cannot be so construed as to permit municipal corporations to so construct a street or highway, that the railroad company would be unable to use its track at the point of crossing for the purpose for which it was constructed. City of Fort Wayne v. Lake Shore and Mich. So. Ry. Co., 132 Ind. 558 (32 N. E. Rep. 215; 32 Am. St. Rep. 277). Ill. Rev. Stat., ch. 24, art. 5, § 1, par. 25, applied-power of city council to regulate the crossing of streets and railroads. Tudor v. Chicago & S. S. R. T. R. Co., Ill. (27 N. E. Rep. 915). Railroads and street crossingsparticular fact case under Minnesota statutes. Kelly v. City of Minneapolis, Minn. (59 N. W. Rep. 304). In Indiana it is held that as the right of way acquired by a steam railroad company across a street is subject to an easement of the public in the street, and the operation of a street railway imposes no additional burden on the street, a street railway company, which has acquired from the local authorities permission to build so as to cross the tracks of a steam railway where they intersect a street, may construct its road across such tracks without compensation to the steam railroad company. Chicago C. T. R. Co. v. Whiting, H. & E. C. St. R. Co.,

Ind. (38 N. E. Rep. 604). In Massachusetts, when land is taken for a railroad, and no right of crossing is reserved in the location or ordered by the county commissioners, it is not subject to such a right, even if without it an owner will be cut off from access to his land. Mass. Stat. 1866, ch. 278, § 3, applied. Googins v. Boston & Albany R. R., 155 Mass. 505 (30 N. E. Rep. 71). See, Fencing railroads.

Sec. 676.

Abandonment-Forfeiture-Reversion.

The Iowa Code, § 1260, which provides that a right of way may be reverted to the original owner, for eight years nonuser, does not prevent a forfeiture for abandonment provided for by conditions in the deed. McLain v. Chicago & N. W. R. Co., (57 N. W. Rep. 594). The failure of a railroad company to complete its road within the time limited by its charter as against third persons, does not affect its title which it may have acquired to the right of way since only the state

Ia.

can take advantage of its default. Chicago & E. I. R. Co. v. Wright, Ill. (38 N. E. Rep. 1062). A mere nonuser by a railway which had been obtained by grant, unless for a period long enough to acquire rights by prescripion, will not work an abandonment. Roanoke Inv. Co. v. K. C. & S. E. R. Co., 108 Mo. 50 (17 S. W. Rep. 1000). The question of abandonment of a right of way is one to be determined from the facts and not from the intention of the officers of the railroad company. Hickox v. Chicago & C. S. R. Co. et al., 94 Mich. 237 (53 N. W. Rep. 1105). In construing a conveyance of a right of way which provides for a reversion to the grantor in case work is not commenced on "said road" within a given time it is held that the words " said road " necessarily refer to the line of the company, and that the commencement of work upon any portion thereof within the time specified is sufficient to prevent a reversion. Lester v. Georgia, C. & N. R. Co., 90 Ga. 802 (17 S. E. Rep. 113). Abandonment of right of way is a question for the jury. Tennessee & C. R. Co. v. Taylor, Ala. (14 So. Rep. 379). Particular facts held not to constitute an abandonment of a right of way. Durfee et al. v. Peoria, D. & E. Ry. Co., 140 Ill. 435 (30 N. E. Rep. 686).

Sec. 677. Miscellaneous notes on right of way. Where a railway company gains lawful possession of private land as a right of way, the land being located outside of any municipal corporation, the subsequent annexation of such land to a city and its acceptance by the city as a public street, does not render the occupation of the railroad company unlawful nor its road a nuisance. City of Denver v. R. R. Cos., 17 Colo. 583 (31 Pac. Rep. 338). Citing, City of Denver v. Mullen, 7 Colo. 345 (3 Pac. Rep. 693); Railway Co. v. Redick, 16 Neb. 313 (20 N. W. Rep. 309). An ordinary street railway is not of itself an additional servitude. People ex rel. Kunze v. Ft. W. & E. R. Co., 92 Mich. 522 (52 N. W. Rep. 1010). The occupation of a street by a street railroad is subject to the right of a municipality to use the street for other necessary municipal purposes. Spokane St. R. Co. v. City of Spokane et al., 5 Wash. St. 634 (32 Pac. Rep. 456). Ind. Rev. Stat. 1881, § 3953, applied-failure of title to right of

way. Chicago & I. Coal R. Co. v. Hall, 135 Ind. 91 (34 N. E. Rep. 704). Mass. Laws 1887, ch. 430; Rev. Stat., ch. 39, § 54, applied. Wilder v. Boston & A. R. Co., 161 Mass. 387 (37 N. E. Rep. 380). Fla. Act Feb. 12th, 1885, ch. 3595, as amended by Act June 8th, 1887, ch. 3712, applied. Jacksonville, T. & K. W. Ry. Co. v. Adams et al., 29 Fla. 260 (11 So. Rep. 169). A city cannot, by an arbitrary change of grade in its streets, destroy a railroad's franchise to occupy them. City of Seattle v. Columbia & P. S. R. Co. et al., 6 Wash. St. 379 (33 Pac. Rep. 1048). A railroad company is bound to provide drainage for such amount of rainfall as a prudent man would anticipate. Gulf C. & S. F. Ry. Co. v. Nichol(25 S. W. Rep. 54); Gulf, C. & S. F. Ry.

son,

Tex.

Co. v. Steele, Tex. Civ. App. (26 S. W. Rep. 926).

A provision in its charter authorizing a railroad company to lay out its road between certain points, does not authorize it to so construct its road as to destroy a public highway. Milliken v. Piles, Ky. (24 S. W. Rep. 604). A conveyance of land in the vicinity by parties not connected with the suit is not admissible to show the value of the land unless it is shown that the land conveyed was similar in locality and character, that the sale was voluntary and in good faith, and that the deed correctly recites the price actually paid. O'Hare v. Chicago, M. & N. R. Co., 139 Ill. 151 (28 N. E. Rep. 923). Witnesses may testify as to the value of the property taken, but should not be allowed to state directly the damages caused by the construction of the road. Hartley v. Keokuk & N.W. R. Co., 85 Ia. 455 (52 N. W. Rep. 352).

RIPARIAN OWNERS.

EPITOME OF CASES.

In a

Sec. 678. Use of water and banks of streams. recent case the authorities are collated and reviewed and it is held that where one sinks an artesian well upon his own land, and uses the water to bathe the patients in a sanitarium or hospital erected by him on said premises, he is not liable to

injunction and damages for allowing the water to flow into a stream which is the natural water course of the basin in which the artesian well is situated, the owner being free from negligence or malice and using all due care in avoiding injury to his neighbor. The natural right to have the water of a stream descend in its pure state must yield to the equal right of those above. It is not, under all circumstances, an unreasonable or unlawful use of a stream to throw or discharge into it water or impure matter; and whether, in any given case, such use would be reasonable or not, is a question for the jury. Barnard et al. v. Sherley, 135 Ind. 547 (34 N. E. Rep. 600). An upper riparian owner may use the water of a stream for mining, even though to do so detracts somewhat from its normal purity, but it must not be diverted from its channel, or so diminished in volume, or so corrupted as practically to destroy or greatly to impair its value to the lower riparian owner. Tennessee Coal, I. & R. Co. v. Hamilton, Ala.

(14 So. Rep. 167). In Oregon, the title to submerged lands of navigable fresh water rivers is in the riparian owner, subject to the public right of navigation, and he has a right to build a wharf extending out to the navigable part of a river, which becomes his private property and cannot be taken for public use without compensation. (Oregon Code, § 4227, construed.) Lewis et al. v. City of Portland et al., 25 Ore. 133 (35 Pac. Rep. 256; 22 L. R. A. 736). The right of navigation does not give the owner of a vessel the right to keep the same for an unreasonable time on the shore between high and low water mark in front of the property of a riparian owner to his injury. Wall v. Pittsburgh Harbor Co., 152 Pa. 427 (25 Atl. Rep. 647; 34 Am. St. Rep. 667). As against every one but the state a conveyance of land bordering upon a lake passes the right to erect a building below low water mark. Winnepesaukee Camp-Mecting Ass'n v. Gordon, N. H.

(29 Atl. Rep. 412). La. Civ. Code, art. 665, appliedriparian rights on navigable waters-building levees. Peart et al. v. Meeker, 45 La. An. 421 (12 So. Rep. 490). Wash. Const., art. 15, § 3, Sess. Laws 1889-90, p. 743, construedextension of streets over tide waters. Columbia & P. S. R. Co. v. City of Seattle, 6 Wash. St. 332 (33 Pac. Rep. 824). The state, by virtue of her sovereignty, is the owner of the