
    *Thomas Parrot v. The Cincinnati, Hamilton and Day Railroad Company.
    Where a railroad company, under the authority of its charter and an ordinance of a city, constructs a railroad through a street of the city, thereby making embankments of earth, gravel, wood, ajid iron above the level of the street, so as to obstruct free and safe passage to and from a lot and1 dwelling-house thereon, adjoining on such street; and where such company, under the authority aforesaid, runs steam-engines, locomotives, and cars-along such street and railroad, thereby making noises, and shaking, disjointing, and disturbing such dwelling-house; and where such company, under the authority aforesaid, and for the purpose of propelling such engines, locomotives, and cars, keeps up dangerous fires, thereby generating noxious vapor, smoke, and filth, near to, and diffusing the same in and about, such lot and dwelling-house, so as 'to render the air unwholesome and to discommode the occupant and owner of such lot and dwelling-house : Held,
    
    1. That such owner and occupant is entitled to damages for any obstruction to the street by earth, gravel, timber, or rail, substantially affecting his use of such street as an appurtenance to his premises.
    2. That in respect to the noises, smoke, vapor, or other discomforts arising from the ordinary use of the railroad by the company, the occupant and owner of such lot and dwelling-house has no more right to recover damages of the company than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discomforts. That a railroad authorized by law, and lawfully operated, can not be deemed a private nuisance.
    Reserved in the district court of Montgomery county.
    This is an action of trespass on the case brought by Thomas Parrot against the Cincinnati, Hamilton and Dayton Railroad Company, in the court of common pleas of Montgomery county, in ■September, 1852, and appealed to the district court, to recover damages claimed to be sustained by the plaintiff because of the act of said railroad company in constructing its railroad on a street in the ■city of Dayton, and running its cars thereon.
    The declaration of the plaintiff contains two counts.
    In the first count of his declaration the plaintiff avers that before and at the time of the committing of the grievances *by the defendant, therein mentioned, the plaintiff was and still is the ■owner of a certain lot in said city, upon which lot is and was built .a certain dwelling-house and out-houses, and that said lot is bounded on one side by Sixth street and on another by Jefferson ■street, and that said streets are common and public highways in said city, dedicated to a common and free use as public streets, and that said dwelling-house and out-houses having been situated on said lot before the committing of the grievances complained of, the plaintiff had the advantage of an elevation and level at the surface ■of said lot of four feet above the level and surface of the said streets, where the said streets bounded and ran along said lot, and was situated as to said streets in a sightly and advantageous position, and that by reason of the premises the plaintiff ought to have had and enjoyed, and still of right ought to have and enjoy, and the said lot and improvements ought to have had, and still ought to have the benefit and advantage of a free and unobstructed passage into and upon and along the said streets, to and from said lot and improvements, and all the benefit and advantage of the said elevation and level of the lot above the level of the said streets,, where they adjoin and run along the same, yet the defendant wrongfully and unjustly intending to injure the plaintiff, and deprive him of his right to a free, safe, and unobstructed passage into- and upon the said streets to and from his said lot, and to deprivohim and his lot of the benefit and advantage of the sightly and elevated position of the lot and improvements, to wit, on the first day of Tune, 1851, and on divers other days and, times between, that day and the commencement of the action, wrongfully, unlawfully, and injuriously, and without his license, and -against his will, built up and constructed a certain embankment of earth, and gravel, and wood, and iron, of the height of five feet, upon and; along said Sixth street, and upon and across said Jefferson street, adjoining and near to the said lot and improvements of the plaintiff, *and continued said embankment for the time aforesaid, and during all that time thereby filling up and obstructing said streets so as to deprive the plaintiff of his right to a free, safe, and unobstructed passage into and upon said streets, on foot, and with his wagons, horses, and carriages, to and from his said lot and improvements ; and so as to deprive the plaintiff of his right to the-free and unobstructed use and benefit of said streets at the place- and places aforesaid, and so as to deprive his said lot and improvements of the advantage of their former sightly and elevated position above the level of said streets; and so as to cause the pavements and sidewalks along and adjoining his said lot and improvements to be often inundated with water and puddles. That by-reason of the several premises the jffaintiff’s said lot and improvements have been and still are greatly injured and depreciated in. value, and he otherwise greatly injured.
    In the second count of his declaration, the plaintiff avers that before and at the time of the committing, by the defendant, of the grievances therein mentioned, he was and still is possessed of a-certain lot and dwelling-house thereon, situate in the city of Dayton,, at the corner of, and near to and adjoining Jefferson" street and Sixth-street, which are common and public streets and highways, dedi - cated to a free and common use as public streets of said city; that the plaintiff and his family resided and still do reside in said dwelling-house, and that he ought to have had and enjoyed, and still ought to have and enjoy the benefit and advantage of the freer ¡safe, and unobstructed use of said public streets, to go to and from his said dwelling-house on foot, and with horses, wagons, and carriages, at his free will and pleasure; that he ought to have had and ■enjoyed, and still ought to have and enjoy, quietly and peaceably, his said dwelling-house and lot as a residence and home for himself .and family, yet that the defendant wrongfully and unjustly contriving to injure the plaintiff, and to deprive him of the free, safe, and unobstructed *use and benefit of said public streets, and of the quiet and comfortable occupancy of his said dwelling-house and lot and appurtenances, and whilst the plaintiff was possessed of the same as aforesaid, to wit, on the first day of July, a.d. 1851, .and on divers other days and times between that day and the commencement of this action, wrongfully, unlawfully, and injuriously, .and without the license of the plaintiff, placed and erected divers large quantities of gravel, earth, timber, and iron, and located and -constructed a railroad in and upon and along said Sixth street, near to, and where it adjoins the plaintiff’s said premises, and in .and upon and across said Jefferson street, within twenty feet of the plaintiff’s said premises, and wrongfully and injuriously continued .-said gravel, earth, timber, and iron, and said railroad along and .across said public streets ; and that the defendant wrongfully, unlawfully, and injuriously, and without the plaintiff’s license, used, operated, and ran upon said railroad so located and constructed, •certain engines, locomotives, cars, trains and railroad machinery, .and in so doing wrongfully and injuriously made and caused to be made divers loud, horrible, and tremendous sounds and noises, and greatly jarred and shook said dwelling-house and premises, and made and caused to be made and kept up divers largo and dangerous fires for the purpose of working, using, and operating the said •engines, locomotives, cars, trains, and railroad machinery, in and .along the said public streets, near to, and where they adjoin the plaintiff’s . premises, thereby generating, emitting, diffusing, and -depositing in and about the plaintiff’s said dwelling-house and premises, large quantities of noxious and offensive vapor, smoke, .and’filth. By means of which several grievances, said public streets at the place aforesaid, were, and still are greatly filled up and obstructed, and the plaintiff prevented from having the benefit and advantage of the free, safe, and unobstructed use of said public streets, at the places aforesaid, as he ought to have had, and otherwise would have had; *and his dwelling-house and premises greatly shaken, disjointed, and disturbed, and the ail-through and about the same filled and impregnated with said noxious vapor, smoke, and filth, and rendered unwholesome and uncomfortable, and the plaintiff greatly harassed, disturbed, annoyed and discommoded in the use, possession and occupancy of his said dwelling-house and promises.
    In bar of the action, the defendant pleads that it is a corporation duly created by the act of tlie general assembly, passed March 2, 1846, by the name of Cincinnati, Hamilton and Dayton Eailroad Company, and by said act authorized and empowered to construct a railroad from Cincinnati through Hamilton to the city of Dayton, upon such line as might be deemed most eligible and proper by said company, in the mode which they might adopt for that purpose, and to tranfer, take and carry persons and property upon the same by the power and force of steam, animal power, or any mechanical or other power, which said company might choose to employ. That afterward, and before the commission of the said supposed grievances in the declaration mentioned, the said company had accepted the provisions of the 11th section of the “ act regulating railroad companies,” passed February 11, 1848, for the appropriation of streets and roads for the construction of railroads •thereon. That it became necessary, in order to form a connection of its road with the Mad Biver and Lake Erie Eailroad, extending from Dayton to Lake Erie, at Sandusky City, owned by the Mad River and Lake Erie Eailroad Company, a corporation bjr a law of this state, to extend its said road into said city of Dayton, and along said Sixth street, passing the said promises of the plaintiff. That on the 26th day of August, 1850, it being necessary, as aforesaid, in the location of said part of its said road, to occupy a part of said Sixth street, along and passing the said premises, it agreed with the corporation of said city of Dayton, owing and having-charge of said street, upon the matter, and upon the terms and conditions upon *which the same might be occupied and used as aforesaid; and that thereupon, on the day and year last aforesaid, the common council of said city, by ordinance duly passed, authorized defendant to use for its railroad tracks said Sixth street, along and passing said property of the plaintiff, together with certain other streets in said city, to a connection with said Mad River and Lake Erie Railroad, and provided the manner in which said railroad should bo constructed upon said street and along and passing said premises, and upon and along said other streets, and further provided that all the work pertaining to the grading, guttering, culverting, and graveling said streets, and the adjustment of the grade of the sidewalks should be done under the direction of, and approved by the city engineer of said city, and further authorized defendant to use steam motive jiower in the-transportation of their trains through said street and other streets of said city; and that the defendant constructed its said railroad-upon said street and along and passing said premises, and upon and along said other streets according to, and in compliance with the provisions of said ordinance, and under the direction and to-the express approval of said city engineer, and that defendant has-transported its trains through and along said street only in the manner provided by said ordinance, and that both in the construction of said part of said railroad, and in the transportation of its trains, defendant has done no unnecessary or avoidable injury to-the plaintiff or his family, or to said premises, and has occasioned to the plaintiff or to his family no unnecessary inconvenience by fires, smoke, filth, noises, or any other cause, and that said railroad,, so as aforesa-id constructed and used in and through said Sixth street, and along and passing said premises, is part of the defendant’s railroad from Cincinnati through Hamilton to Dayton, and is constructed and used by virtue of its corporate powers as aforesaid.
    To this plea the plaintiff filed a general demurrer; and the-^questions thus raised, were reserved in the district court for decision in this court.
    
      Odlin & Lowe and Parrot Baggot, for plaintiff.
    
      Haynes & Howard and Davies & Crane, for defendant.
   By the Court :

Held—

That the plaintiff is entitled to damages for any obstruction to the street by earth, timber, or rail, substantially affecting the use of it by the plaintiff, as an appurtenance to his premises.

That in respect of noise, smoke, or other discomforts, ai'ising from the ordinary use of the railroad by the company, the plaintiff has no more right to recover than any citizen who resides or may have occasion to pass so near the street as to bo subjected to like discomforts. That a railroad authorized by law, and lawfully operated, can not be deemed a private nuisance.

Demurrer overruled and case remanded.  