Denver, U. & P. R'y Co. v. Barsaloux

Bissell, C. A great many questions are raised and discussed by counsel; but as the case has been practically settled by a decision rendered in this court subsequent to the hearing and judgment in the court below, most of them will be loft undetermined. The very full statement of facts which precedes this opinion will show the applicability of that decision to this controversy, and serve to eliminate from the discussion most of the other questions which would naturally be suggested. There is no dispute concerning the extent and character of the antecedent occupation of the street by the railroad company. The road was built and put into practical operation in the fall of 1881, and since that time, down to the laying of the third rail, which is the injury complained of, the street had been occupied by the company, and the road constantly used by them in the operation and maintenance of their system. To this operation and use the plaintiffs offered no objection. During this entire period, as they allege, they were the owners, and in the occupancy, of the lots which they claimed were injured by the laying of the third rail. This rail was to be laid on the old road-bed and ties, and was, if anything, an added burden laid upon the street. At no point in its course did the road cross the [294] property of the complainants and touch the lots of which they possessed the fee. The case, then, is clearly within the principles laid down in the case of Railroad Co. v. Domke, 11 Colo. 247. It was not open to the complainants to interfere with the operation of the road already constructed. The absence of protest or objection, and the implied assent to that use, properly presumed from their ^silence, effectually precluded the plaintiffs from seeking any equitable relief against the continued operation of the road as originally constructed. They are equally without right to injunctive relief for the damages resulting from the laying of the third rail, and the extended use of the road-bed for that purpose. The plaintiffs were, if anything, simply abutting lot-owners, with no title to the fee of the street, and therefore without other right to recover than what accrued from the damages which they might sustain by the increased burden put upon the street, and the injury done to their particular estates. But against these wrongs equity does not relieve in this state, unless some special circumstances, bringing the case within some other branch of equitable jurisdiction, be averred. The party injured is not without remedy, but his recovery may only be had in a court of law, where the damages may be estimated. Were the foregoing reasons insufficient to warrant a reversal, the decree could not be permitted to stand. It did not undertake to adjudicate the rights of the parties as to the use of Argo street where it abutted upon the plaintiffs’ property, but conceded the use proved to be consistent with the rights of the owners. By its terms it inhibited the company from continuing the broadening of their gauge beyond the point which it had reached at the time of the institution of the suit. This point was beyond the limits of the complainants’ property. About the user and extension of the road in that manner no one under the proofs in this suit had a right to complain. It was not competent for the court to adjudicate as to a matter which was not [295] properly involved in the issues, and which was not embraced by the proofs made. The case should be reversed and remanded, with instructions to the court below to dismiss the bill' at the plaintiffs’ cost. . Reed and Richmond, 00., concur. Per Curiam. For 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. ■ Bev&rsed.