Statement of the Case.

private persons owning property in that neighborhood by reason of the obstruction of the street, the noise and the disagreeable odors, then it was a private wrong, also, which these parties are entitled to have redressed. I should further

caution you against supposing that the plaintiff is entitled to recover for all the inconvenience he may suffer in consequence of the railroad being located there at all. The railroad company has the right to lay its tracks there by authority of law, and everything which is the inevitable result of the legal use of the road are things which the law does not consider grievances, and does not allow damages for. For example, the trains have a right to pass over the street, to stop there at the station, and to go on in each direction. That necessarily gives some inconvenience to everybody. The noise, the smoke and the dust along the street is a disagreeable thing to the whole neighborhood, but inasmuch as the law authorizes that it is not the subject of a private action. It is only the illegal use of the street which will give a person a right of action against the company, and this I have already explained. The inevitable consequences of the road being located there and of trains travelling in a legal way over the road are what the law calls 'damnum absque injuria' — that is, an injury without any wrong or damage. You will confine your consideration entirely to the temporary inconvenience occasioned by the unlawful occupation of the street for the purposes that have been mentioned."

The jury found for the plaintiff and assessed his damage at one thousand three hundred and twenty-eight dollars, and judgment was entered on the verdict, which was subsequently affirmed in general term.

To reverse this judgment the writ of error was sued out which defendant in error now moves to dismiss.

The following are the statutory provisions relating to the Baltimore and Potomac Railroad which are deemed material. The first section of the act of Congress of February 5, 1867, 14 Stat. 387, c. 29, is as follows:

"WHEREAS, it is represented to this present Congress that the Baltimore and Potomac Railroad Company, incorporated

Statement of the Case.

by an act of the General Assembly of Maryland, entitled ‘An act to incorporate the Baltimore and Potomac Railroad Company,' passed the sixth day of May, eighteen hundred and fifty-three, are desirous, under the powers which they claim to be vested in them by the provisions of the before recited act, to construct a lateral branch from the said Baltimore and Potomac Railroad to the District of Columbia: Therefore,

"Be it enacted by the Senate and House of Representa tives of the United States of America in Congress assembled, That the Baltimore and Potomac Railroad Company, incorporated by the said act of the General Assembly of Maryland, shall be, and they are hereby, authorized to extend into and within the District of Columbia, a lateral railroad, such as the said company shall construct or cause to be constructed, in a direction towards the said District, in connection with the railroad which they are about to locate and construct from the city of Baltimore to the Potomac river, in pursuance of their said act of incorporation; and the said Baltimore and Potomac Railroad Company are hereby authorized to exercise the same powers, rights and privileges, and shall be subject to the same restrictions in the extension and construction of the said lateral railroad into and within the said District as they may exercise or are subject to, under and by intent of their said charter or act of incorporation, in the extension and construction of any railroad within the State of Maryland; and shall be entitled to the same rights, compensation, benefits and immunities, in the use of the said road, and in regard thereto, as are provided in their said charter, except the right to construct any lateral road or roads within the said District, from the said lateral branch or road hereby authorized; it being expressly understood that the said Baltimore and Potomac Railroad Company shall have power only to construct from the said Baltimore and Potomac Railroad one lateral road within the said District to some point or terminus within the city and county of Washington, to be determined in the manner hereinafter mentioned."

By § 3 it was provided that the company "in passing into the District aforesaid, and constructing the said road within

Statement of the Case.

the same, shall enter the city of Washington at such place, and shall pass along such public street or alley, to such point or terminus within the said city as may be allowed by Congress, upon presentation of survey and map of proposed location of said road: Provided, That the level of said road within the said city shall conform to the present graduation of the streets, unless Congress shall authorize a different level."

The twelfth section of the act of the Legislative Assembly of Maryland, referred to in the above-mentioned act of Congress, Laws of Maryland, 1853, pp, 234, 239, reads thus:

"SEC. 12. And be it enacted, That the president and directors of the said company shall be, and they are hereby, invested with all the rights and powers necessary to the construction, working, use and repair of a railroad from some suitable point in or near the city of Baltimore, and thence within one mile of the town of Upper Marlboro, in Prince George's county, and as near to said town, within the limits of said distance, as may be practicable, and by or near the town of Port Tobacco in Charles county, to a point on the Potomac river, to be selected by the president and directors of said company hereby incorporated, not higher up than Liverpool Point, and not lower down than the mouth of St. Mary's river, with such branches at any point of said railroad, not exceeding twenty miles in length, as the said president and directors may determine; the said road when completed not to be more than sixty-six feet wide, except at or near its depots or stations, where the width may be made greater, with as many tracks as the president and directors may deem necessary; and the said president and directors may cause to be made, or may contract with others for making, said railroad or any part of it, and they or their agents, or those with whom they may contract or their agents, may enter upon and use and excavate any lands which may be wanted for the site of said road or the erection of warehouses or other works necessary for the said road or for its construction and repair; and that they may build bridges, fix scales and weights, lay rails, may take and use earth, gravel, stone, timber, or other mate

Statement of the Case.

rials which may be needed for the construction and repair of the said road or any of its works, and may make and construct all works whatever which may be necessary and expedient in order to the proper completion and maintenance of the said road; and they may make, or cause to be made, lateral railways in any direction whatever from the said railroad, and for the construction, repair and maintenance thereof shall have all the rights and powers hereby given in order to the construction and repair of said principal railroad, and may also own and employ steamboats or other vessels to connect the said railroad or railroads with other points by water communication: Provided, Nothing herein contained shall be construed to authorize the said company to take private property for their use without compensation agreed upon by the company and the owners thereof, or awarded by a jury, as hereinafter provided, being first paid or tendered to the party entitled to receive such compensation."

By act of Congress of March 18, 1869, 16 Stat. 1, 2, c. 2, it was declared that the Baltimore and Potomac Railroad Company "may enter the city of Washington with their said railroad and construct the same within the limits of said city on and by whichever one of the two routes herein designated the said company may elect and determine upon;" and by the act of March 25, 1870, 16 Stat. 78, c. 32, § 2, a modification of the second of these two routes was authorized. The terminal point in each was described as a point at the intersection of South C and West Ninth streets.

The company made choice of the second of the projected routes, commencing on the western shore of the Eastern Branch, between South L and South M streets, and thence passing through K Street and Virginia Avenue to the terminal point on Ninth Street.

By act of June 21, 1870, 16 Stat. 161, c. 142, Congress enacted "that the Baltimore and Potomac Railroad Company be, and they are hereby, authorized and empowered to extend their lateral branch, authorized by the act to which this is a supplement, and by former supplements to said acts, by the way of Maryland Avenue, conforming to its grade, to the via

Argument against the Motion.

duct over the Potomac River at the city of Washington, known as the Long Bridge, and to extend their tracks over said bridge, and connect with any railroads, constructed or that may hereafter be constructed, in the State of Virginia," the act authorizing the railroad company, to effect these purposes, to take possession of and use the bridge free of cost and maintain the same, etc. By virtue of the authority granted by this act the railroad extended its "lateral branch" to the Potomac River from Ninth Street south, by way of Maryland Avenue; and it was further authorized by act of March 3, 1871, 16 Stat. 585, c. 137, in making this extension, to change the grade of Maryland Avenue from Twelfth Street to the Long Bridge in the manner specified in that act, under the supervision of the municipal authorities of Washington.

The act of Congress of May 21, 1872, 17 Stat. 140, c. 189, relating to the establishment of a passenger depot of the company at Sixth and B streets, makes mention of no streets or avenues except B Street and Sixth Street and Virginia Avenue.

Mr. S. S. Henkle and Mr. Samuel Maddox for the motion.

Mr. Enoch Totten opposing.

The plaintiff in error, in the trial court, relied on an authority exercised under the United States, derived through several acts of Congress, to occupy and use the portion of the streets in controversy, in the manner and for the purposes claimed, and the defendant in error denied the validity of the asserted authority. The question made by this motion is this: Has this court jurisdiction to review the judgment of the court below under the provisions of the second section of the act of March 3d, 1885?

The terminus of the railroad being fixed at the junction of Ninth and C streets, the company had a right under its charter to construct stations, and so forth, there; even if it did not possess this right, it claimed and exercised it, and it has the right to be heard on that question in this court, under this act of Congress.