102 P. 629 | Utah | 1909
Tbe respondent brought this action to recover damages as an abutting owner of certain property arising by reason of tbe construction and operation of a certain railroad in a public street of Salt Labe City. Tbe complaint, stripped of all unnecessary verbiage, in substance, alleges: That tbe respondent is tbe owner of a certain parcel of ground one hundred by one hundred and sixty-five feet in Salt Lake City; that one hundred feet of said property abuts on a public street known as Third West street; that appellant for many years had operated a double-track, standard-gauge, steam railroad in said street immediately in front of respondent’s property; that prior to the filing of the complaint the appellant had commenced and had “practically” completed the construction of two other tracks which connected with the first two tracks immediately in front of respondent’s property, and then bear in a southwesterly direction across the south half of the street, one of which tracks passes within 9 feet and the other within 19 feet from the northwest corner of respondent’s lot; that said tracks will be permanently used by appellant for the passage of its freight and passenger trains, and will also be used, with the permission of appellant, by another railroad company for the passage of its trains; that, in addition to the local traffic, many of said trains will pass between Salt Lake City and other distant points on the Pacific coast, northwest and southwest; that many heavy engines and trains of cars, both freight and passenger, together with switch engines switching cars, will, both day and night, pass to and fro in front of respondent’s property ; that by reason of the foregoing facts respondent’s property will be injuriously affected; that the ingress and egress to and from the same will be greatly impeded; and that by other means directly attributable to the laying of said tracks, and the operation of said trains over them, as stated, the value of said property has been greatly depreciated. No damages are claimed by reason of the laying and the operation of trains over the first two tracks. Neither is there any claim made that the appellant did not have the legal right to lay
Appellant contends tbat tbe complaint is defective, in substance, because it contains no direct averment tbat respond.-ent was tbe owner of tbe property in question at tbe time tbe acts complained of were committed. Even
The theory adopted by the trial court was that an action by
The contention that the court committed prejudicial error in permitting a witness to use a memorandum made by him at the time of the occurrence, in testifying to the number of trains that passed in front of the property
From what has been said, it follows that the judgment should be, and it accordingly is, affirmed, with costs to respondent.