
130 U.S. 426 (1889)
SHEPHERD
v.
BALTIMORE AND OHIO RAILROAD COMPANY.
No. 213.
Supreme Court of United States.
Argued March 20, 21, 1889.
Decided April 8, 1889.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.
*430 Mr. John W. Herron, for plaintiff in error.
Mr. Hugh L. Bond, Jr., and Mr. E.J.D. Cross, for defendant in error.
MR. JUSTICE HARLAN delivered the opinion of the court.
The express requirement that every railroad company occupying a street or other public ground, under an agreement with the municipal or other authorities, owning or having charge thereof, "shall be responsible for injuries done thereby to private or public property, lying upon or near to such ground," leaves little room for construction. The right to recover damages for such injuries is not limited to owners of property immediately upon the street occupied by the track or other structures of the railroad company. If the legislature had intended to restrict the right of action given by the statute to owners of the latter class of property, the words "or near to" would not have been used. The manifest purpose was to place those whose property was "near to" any public *431 street thus occupied upon an equality, in respect to the right to sue, with those whose property abutted on the street.
In Columbus, Springfield &c. Railroad v. Mowatt, 35 Ohio St. 284, 287, which was an action to recover damages for injuries to private property not immediately upon the street occupied by the railroad track, the court held the limitation of two years prescribed by the statute to be applicable, because the street was occupied under an agreement with the municipal authorities, and because the premises were "near to" that street. But an adjudication more directly in point is Railway Co. v. Gardner, 45 Ohio St. 309, 318, which was made after the decision in the court below of the case now before us. The property there alleged to have been injured was immediately upon the street in which the railroad track was maintained under municipal authority. Referring to Parrot v. Railroad Co., 10 Ohio St. 624, as not controlling the case then before the court, it was said: "For, whereas the court declares in that case that the owner of such lot 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, the act in question expressly authorizes an action and recovery for injuries done by laying a track upon any such street or ground to private or public property `lying upon or near to the street or ground upon which the track is laid.' It seems that to entitle a property owner to recover for injury to his property, it need not necessarily be situated upon the street occupied by the track. The statute reaches beyond the decision in prescribing a remedy for a party whose property is injured by the location and operation of a railroad track through the street by a railroad corporation... . The provision in force at the time of the injury complained of in that case, of which § 3283 is an amendment, created no such remedy for land owners as we are considering."
This interpretation of the statute is, in our judgment, the only one justified by its words, although it may sometimes be difficult to determine whether particular property, alleged to have been injured by the placing of a railroad track or structure *432 in a public street, is, within the meaning of the statute, "near to" that street. It is certain, however, that property is "near to" the street, so as to entitle the owner to avail himself of the remedy given by the statute, if the injury to it is the direct and necessary result of the occupancy of the street by the track or other structures of a railroad company. And an injury for which the company is liable, under the statute, arises when the diminution of the value of the property can be fairly attributed to such occupancy and use of the street. In Grafton v. Baltimore & Ohio Railroad, 21 Fed. Rep. 309, which was an action under this statute for injury done by the obstructions here in question, Mr. Justice Matthews said: "There does not appear to be any ground, in the words or intention of the act, for a distinction between temporary injuries to the use, and permanent injuries to the value, of the property injured; and, in the absence of any ambiguity, the statute must be taken to mean what it plainly says; and, there being no sufficient reason to the contrary, must be so construed that the railroad company, in the case contemplated, shall be held responsible for all injuries of every description done by its work to the property of the plaintiffs." It is scarcely necessary to say that the same rule as to compensation must be applied in the case of property "near to" any street so occupied by a railroad company. The injury, in a case of that kind, may not, in every case, be easily ascertained, but the right of the owner, under the statute, to full compensation for it, is as clear as is the right of the owner of property abutting on the street, to be compensated for any substantial injury resulting from its occupancy by a railroad.
One of the questions discussed at the bar was as to the right of the plaintiff to recover damages in this action on account of the obstructions placed in Union and Thirty-first Streets during the building of the railroad, whereby access to his property by way of Union Street, as well as through the alley in the rear, was materially obstructed. We are of opinion that the temporary injury sustained by the plaintiff on account of such obstructions cannot properly be said to have been done to the property itself, within the meaning of the statute. The *433 inquiry in every case, under the statute in question, is, whether the property alleged to be injured has been depreciated in value by reason of the street being occupied by a railroad company, and that question is solved by ascertaining the difference in its value before and its value after the final location and construction of the railroad. Railway Co. v. Gardner, 45 Ohio St. 309, 322. The authority given to the railroad company to place its track in Thirty-first Street carried with it authority to obstruct its use temporarily, so far as the building of the track required it to be done. The rule, in Ohio, applicable in such a case is thus stated in Clark v. Fry, 8 Ohio St. 358, 373: "The right of transit in the use of public highways is subject to such incidental, temporary, or partial obstructions as manifest necessity may require," and among those are the temporary impediments necessarily occasioned in the building and repair of houses on lots fronting upon the streets of a city, and in the construction of sewers, cellars, drains, etc. "These are not invasions, but qualifications of the right of transit; and the limitation upon them is that they must not be unnecessarily and unreasonably interposed or prolonged."
But the plaintiff's special damages, if any, on account of such obstructions, constituted a cause of action apart from his claim, under the statute before us, for damages on account of the depreciation of the value of the property itself, as the result of the permanent occupancy of the street with a railroad track. And here the point is made that the petition is not so framed as to cover those special damages. In this view we do not concur. Its allegations are broad enough to admit evidence in support of the claim for damages on account of any unnecessary obstruction of the plaintiff's access to his property during the building of the railroad track in Thirty-first Street, as well as of the claim for injury done to the permanent value of the property. The plaintiff could have been required to separately state his two causes of action, but no motion to that end having been made in the court below, that objection was waived. McKinney v. McKinney, 8 Ohio St. 423; Hartford Township v. Bennett, 10 Ohio St. 441, 443; Civil Code Ohio, §§ 80, 81, 86. Nor, so far as the record shows, *434 were the rulings of the court below based in any degree upon the ground that the petition did not sufficiently set forth a separate cause of action for special damages on account of the temporary obstructions referred to.
The point was pressed at the bar, that, as no proof was introduced by the plaintiff to overcome the denial by the defendant in its answer of his ownership of the property in question, any errors committed by the court as to other issues made by the pleadings are immaterial, since the peremptory instruction was proper in view of the plaintiff's failure to prove his ownership. This objection is too technical and cannot be sustained, as the property is repeatedly referred to in the record as being owned by the plaintiff, and the court so assumed in its rulings. After the exclusion of competent evidence introduced and offered in behalf of the plaintiff upon the issue as to the injury done to the property, his ownership being unquestioned except by a formal denial in the answer, and the issue as to the injury being treated as the real point of inquiry, we ought not to affirm for the want of affirmative proof in the record of such ownership.
It results from what we have said that the plaintiff was entitled to go to the jury upon the issue as to the damage he sustained, if any, by reason of the access to his property during the construction of the track being unnecessarily and materially obstructed by the company, as well as upon the issue as to the depreciation, if any, in the value of his property, as the direct and necessary result of the permanent occupancy of Thirty-first Street by the track and structures of the company. Evidence was offered which tended to support those issues, upon his part, and was improperly excluded.
The judgment is reversed with directions for a new trial, and for further proceedings consistent with this opinion.
