
    Railroad Company v. Campbell.
    
      Railroad Companies — Use of Streets — Damages to abutting lot owner — Remedy, personal.
    
    The damages, for which a recovery is given by section 3283, Revised Statutes, are personal in character and do not pass to a grantee on a conveyance of the land.
    (Decided May 21, 1894.)
    Error to the Circuit Court of Butler county.
    The plaintiff below commenced suit in the common pleas against the defendant, and in his petition alleged, that he is the owner of a lot, one hundred feet square, at the northeast corner of the intersection of High and Fifth streets, in the city of Hamilton, Butler county. That, with the permission of the city, but without any consent of his, the defendants located and constructed their railroad tracks across the intersection of these streets and near the property of the plaintiff; that in so doing they raised the grades of the streets and materially injured his property by destroying access to it; and that, in operating their road, they cause large quantities of smoke, dust and sparks of fire, to be constantly thrown on to and over his lot, and cause loud and harsh noises and sounds to be made on and near his lot; for which he asked damages.
    The Cincinnati & Richmond Railroad Company, the company that located and constructed the tracks, among other defenses, averred, that since the commencement of the action, on May 30, 1889, the plaintiff by warranty deed and for a valuable consideration, conveyed his lot without any reservation to himself' to ~W. H. C. Campbell. A demurrer to this having been overruled, the plaintiff replied, that the conveyance was to his son, for love and affection, and for no other consideration. The case was tried to a jury, which at the close of the plaintiff’s testimony, by direction of the court, returned a verdict for the defendants, the court’s direction being placed on the ground, that the plaintiff having, as shown, conveyed all his interest in the property to his son, nothing remains to the plaintiff on which he can maintain his action. On error, the circuit court held that the common pleas erred in overruling the demurrer to the supplemental answer, and in instructing the jury to return a verdict for the defendants.
    
      Charles Darlington, for plaintiff in error.
    
      Morey, Andrews & Morey, for defendant in error.
   By the Court.

There was no error in the Circuit Court reversing the judgment. It is true that the plaintiff could not in the suit as brought recover compensation and damages for the taking or impairment of his easement in the streets named or either of them. This is settled by the previous decisions of this court. See Railway v. O'Harra, 50 Ohio St., 667, and cases there cited. The remedy of the landowner is, in such case, by a proceeding under section 6448, Revised Statutes, to compel condemnation. So that in this view it is immaterial whether the plaintiff had subsequently to the commencement of the suit, conveyed his property to another or not. But his petition was broader than a suit for compensation for the taking of his easement in the streets. It also sought a 'recovery for damages incidental to the running’ and operation of the road in such close proximity to his property, on and along the streets, as by the noise, dust, and sparks emitted from the locomotive, to greatly impair its value. Such damages are within the remedy provided by section 3283, Revised Statutes. They are personal in character and do not attend the land on a conveyance of it to another, so far as they have accrued at the time of the conveyance; and, the suit having been brought within the time limited, the pláintiff was entitled on his petition to recover such damages as he had suffered therefrom. So that while the common pleas did not err, as held by the circuit court, in overruling the demurrer to the answer, as the facts stated in it did not bar a recovery for consequential damages, it was right in holding that the common pleas erred in taking tlie case from the jury, as the evidence tended to show a right in the plaintiff to recover some such damages. On the trial, it will be the duty of the court to carefully distinguish between such dam- ' ages and such as are properly included in the compensation to be awarded for á taking of the easement in the street. The latter passed to the grantee under the deed; the former, to the time of the conveyance, can only, and may be recovered by the grantor.

Judgment affirmed.  