
    Denver, U. & P. R. Co. v. Toohey.
    Release oe Damages by Lot-owner eor Use of Street by Railroad Company — Estoppel.— 'When an owner of a city lot abutting on a street, for a valuable consideration releases a railroad company for all claims for damages by reason of the construction" and maintenance of its railroad in such street, neither the changing of the road from a narrow gauge to a wide gauge, nor any subsequent use of the street for railroad purposes by said company, can give the lot-owner a right of action, without proof that the new use, or the new mode of operating the road, had damaged him.
    This case, No. 2215, was consolidated with Bo. 2211 (Railway Co. v. Barsalow, ante, p. 290), which is the preceding case against the company, and the two cases were tried together. The record comes into this court showing that the cases were tried on the same proofs, except in so far as they are modified by the difference in the parties plaintiff, and the lots involved, and a further fact which will be stated. "
    Mrs. Toohey proved title by the production of a conveyance from Collins, who platted the addition. The statement of facts made in the preceding case is applicable to this. It further appeared on the trial that Mrs. Toohey, prior to the institution of her suit, had executed the following instrument: “ Know all men by these presents that I, Ann Toohey, of the city of Denver, in the state of Colorado, for and in consideration of the sum of $200, to me fully paid by the Denver, Btah & Pacific Bailroad Company, the receipt whereof is hereby confessed and acknowledged, do hereby release, discharge and forever quitclaim the said Denver, Utah & Pacific Railroad Company from all and singular every claim and demand whatsoever existing in my favor against the said railroad company, from the beginning of the world to this date, and particularly from afi and singular the damages of every name and nature which I have sustained by reason -of the construction, maintenance and operation, by the said railroad company of its railroad in front of niy premises situate on the strip of land -called ‘Argo Street ’ in the city of Denver, which said premises are described as being lot numbered 32 in Collins’ addition to the city of Denver. Dated September 22, A. D. 188é. [Signed] Ann Toohey.”
    The pertinence of this proof is manifest from the record. ' Under the evidence it cannot be said that the third rail, or the manner of operating the road after the change, put an added burden on the street which was a damage to Mrs. Toohey or to her property. The same decree was entered in this case as in the Barsaloux case against the company. Prom it the same appeal was prayed and taken.
    Messrs. ’Wolcott & Yaile, for appellant.
    Messrs. Browne & Putnam, for appellee.
   Bissell, C.

It is unnecessary to repeat what has already been decided in the case of Railway Co. v. Barsaloux, ante, p. 290.

Por the reasons given in that opinion it is evident that Mrs. Toohey cannot maintain her bill, and is entitled to no relief under the proofs which she has made. But her case need not be put upon those grounds alone. Upon the record this release is an insuperable obstacle to her recovery. If she had suffered any damage from the original construction of the road she had been fully compensated for it; and, for a valuable consideration, had released the company therefrom, hfo subsequent use of the street for railroad purposes, nor any further operation of the road, could give to Mrs. Toohey any right of action without sufficient proof by her that a new use, or a new mode of operation, had in some fashion so damaged her as to give rise to a cause of action based dn such new use or such new mode of operation. This the evidence fails to establish.

Por this reason, as well as those which are assigned in the preceding opinion, the decree in favor of Mrs. Toohey must be reversed and her cause remanded, with directions to the court below to dismiss her bill at her own costs.

Peed and Bichmond, OO., concur.

Per Curiam.

Por the reasons stated in the foregoing opinion the judgment of the court below is reversed and the cause remanded, with directions to dismiss the suit.

Reversed.  