State, ex rel., v. Hamby. That portion of the third section of the act abolishing the offices or officers, and its proper meaning may be, was therefore nothing more than declaratory of the meaning and effect of the first section, and cannot be said to be incongruous, but is clearly germane to it. It is not in any sense a separate or distinct subject. The chief attack evidently intended to be made and urged against the constitutionality of this statute when this bill was filed was that the complainant and other district officers of the county could not be deprived of their offices before the expiration of the constitutional terms for which they were elected indirectly by abolishing their districts, but it is now conceded that since then this question has been decided adversely to this contention in the cases of Grainger County v. State, 111 Tenn., 234, 80 S. W., 750, and State v. Akin, 112 Tenn., 603, 79 S. W., 805. It is held, in effect, in these cases, that the general assembly, in the exercise of its power over the affairs of counties and municipalities, may abolish existing civil districts of counties and create others at will, and that when a district is abolished all the offices for it cease to exist with it; and the official life of those holding them is immediately ended, in the absence of a saving clause like that contained in this statute, providing that they shall hold their offices until others for the new districts are elected and qualified. This statute seems to be without constitutional objection, and valid and effective to abolish all the civil State, ex rel., v. Hamby. districts of Cumberland county existing when it was enacted; the result of which was to destroy the offices of justice of the peace, constable, and tax assessor in those districts; and, consequently the complainant ceased to be a justice of the peace May 7, 1903, when the act took effect, and is not entitled to any relief under his bill. The decree of the chancellor and the court of chancery appeals so adjudging is affirmed. 114 368 117 232 Terminal Co. v. Lellyett. LOUISVILLE & NASHVILLE TERMINAL COMPANY et al. v. (Nashville. December Term, 1904.) 1. VARIANCE. None between allegations and proof where writ shows plaintiff sues as trustee and next friend for beneficiaries though declaration is in his own name, and proof shows title in him for the beneficiaries. The holder of the legal title to land as trustee for the beneficial owners may, as their trustees and next friend, sue to recover damages to the use of their land, health and comfort caused by defendant's improper use and maintenance of railroad and terminal yards, roundhouses, and other accessories in and near the same; and where the writ or summons shows that the suit is by him as trustee and next friend for the named beneficial owners, and the averments in the declaration are in his own name without more, and the proof shows the title to the land to be in him for their use and benefit, there is no fatal variance between the allegation and proof, for it sufficiently appears from the writ and declaration that the plaintiff was trustee for the named beneficial owners, and that the suit was brought for damages to the use of their property, health and comfort. (Post, pp. 372, 373, 384.) 2. MISJOINDER OF ACTIONS. Obviated by abandonment of the claim constituting the misjoinder. Misjoinder of cause of action may be obviated by abandonment or withdrawal of the claim that constitutes the misjoinder, with proper instructions to the jury, and its omission as one of the elements of recovery or damages in the charge of the trial judge. (Post, p. 385.) 3. SAME. None in action for injury to use of land by allegation of impairment to health of plaintiff's family as a specification of damages done to land as a home. Where, in an action for injuries to the use of certain real estate caused by defendant's improper maintenance and use of rail Terminal Co. v. Lellyett. road and terminal yards, there is no claim for damages for sickness, doctor's bills, etc., and an allegation in the declaration of impairment of the health of plaintiff's family is merely a specification of damages done to the land as a home or place of residence, just as in the destruction of the grass, trees, shrubbery, etc., and the presence of smoke, cinders, etc., the declaration is not objectionable for misjoinder of causes of action, for there is no separate cause of action in favor of the plaintiff's wife and children for injuries to their health. (Post, pp. 385, 386.) 4. PLEADING AND PRACTICE. Count for injuries to fee as distinguished from recurrent injuries eliminated by charge of court. Where, in an action by an adjacent landowner for injuries to his land resulting from the defendant's improper operation of railroad and terminal yards, the court, at plaintiff's request or on its own motion, charged that plaintiff could not recover for injuries to the fee and that the proof of the value of the premises must be considered only in determining the question whether the comfortable enjoyment of the premises had been impaired or destroyed, such instruction eliminated counts or causes of action alleged for the recovery of permanent as distinguished from recurrent damages. (Post, pp. 386, 387.) 5. RAILROAD AND TERMINAL CORPORATIONS. Location and operation cannot be authorized with immunity from damages for injuries to adjacent property. Railroad and terminal corporations cannot be authorized, under their charters nor by law, seriously to impair or destroy adjacent property by the location and operation of terminal yards, roundhouses, coal chutes, etc., with immunity from damages for injury to adjacent property resulting from such location and operation of their terminal yards. (Post, pp. 388-400, and espec ially 391.) Cases cited and approved: Telegraph and Telephone Co. v. Jacobs, 109 Tenn., 727, 741, 743; Madison v. Copper Co., 5 Cates, 114 Tenn-24 Terminal Co. v. Lellyett. 331, 342, 343; and numerous cases in other States and countries cited in the opinion on pages 392-399. 6. SAME. No damages for injuries from increased railroad traffic, but damages from operation of railroad terminal yards and accessories, when. In an action to recover damages for injury to adjacent property by the operation of railroad and terminal yards, the plaintiff is not entitled to recover damages incident to the increase of traffic into and through the station over tracks laid fifty years ago, when his property was vacant, or over other tracks subsequently laid as the traffic increased and required them, but may recover damages for injuries resulting to his property from the operation of terminal yards, roundhouses, coal chutes, etc., and the switch yards and tracks necessary to operate them, where the ailroad terminal corporation was organized and the terminal yards and facilities were constructed after the erection of plaintiff's house. (Post, pp. 400, 401.) 7. DAMAGES. For injury to property from operation of public or quasi public enterprises, when and when not. The law does not allow damages for annoyances and discomforts resulting from the operation of public or quasi public enterprises, unless they go to such an extent as to injure the usable and rental or permanent value of the property, for they must amount, to some extent, to the taking of the value of the property, either temporary or permanent, and depriving the owner thereof. (Post, pp. 401-403.) Cases cited and approved: Railroad v. Bingham, 87 Tenn., 522; Demarest v. Hardham, 34 N. J. Eq., 469. 8. SAME. Measure of damages for injury to real estate is its diminished rental value, when. Where railroad terminal yards are operated so carelessly and negligently as to create a nuisance to plaintiff's adjacent property, which might be avoided and obviated by adopting other means and being more careful in the manner of operating the |