STATE ex rel. DININNY, City Attorney, v. CITY COURT OF SALT LAKE CITY.

No. 2199. Decided February 1, 1911 (113 Pac. 1018).

MANDAMUS-ALTERNATIVE WRIT-EFFECT OF COMPLIANCE. A municipal judge having complied with an alternative writ of mandamus issued by the Supreme Court, by permitting the city attorney and his assistants to prosecute cases in his court, the Supreme Court will not review the previous denial of such permission. (Page 474.)

Mandamus proceeding by the State of Utah, on the relation of H. J. Dininny, City Attorney of Salt Lake City, against the city Court of Salt Lake City; Hon. J. J. Whitaker, Judge.

DISMISSED.

P. J. Daly and S. P. Armstrong for plaintiff.

E. A. Walton and George Halverson for defendant.

STRAUP, J.

Upon the application and affidavit of the city attorney of Salt Lake City, wherein it was averred that he and his assistants were wrongfully prevented and excluded by the judge of the city court from taking charge of and prosecuting cases, on behalf of the city in the city court, involving violations of city ordinances, an alternative writ of mandate was issued by us, commanding the judge to permit the city attorney and his assistants to appear and prosecute such cases, or show cause. The judge, on the service of writ, permitted the city attorney and his assistants to appear in the city court, and to take charge of and prosecute such cases on behalf of the city, and in answer to the writ alleged such facts in compliance with the mandate of this court. He further alleged matters and things showing his reasons for thereto

fore preventing and excluding the city attorney and his assistants from taking charge of and prosecuting such cases in the city court. The judge, and in a way, also, the relator, notwithstanding such showing and such admitted averments of compliance, have, nevertheless, asked us to review and pass on the questions of justification and authority of the judge in so excluding and preventing the city attorney and his assistants, upon the alleged grounds, from taking charge of and prosecuting such cases on behalf of the city.

To properly dispose of this proceeding it is sufficient that the judge complied with the writ, and, in obedience to its requirements, granted the relator all that was commended, and all that he asked for by his application. We cannot see what further complaint the relator has, or what further defense the judge can make, except to have our judgment on a mooted question. The judge was commanded to do certain things or show cause. He did the things as commanded and showed cause. That is, he did the things as commanded, and so averred in his answer to the writ, which averments were admitted by the relator, and then also averred matters and things showing why he had, theretofore prevented the relator and his assistants from taking charge of and prosecuting cases on behalf of the city in the city court. Since it is thus made to appear that the judge has granted to the relator all that he claimed was denied him, this proceeding ought not to require any further judicial attention. It is therefore dismissed.

It is so ordered.

FRICK, C. J., and MCCARTY, J., concur.

1

O'NEILL v. SAN PEDRO, LOS ANGELES AND SALT LAKE RAILROAD COMPANY.

No. 2183. Decided February 9, 1911 (114 Pac. 127).

1. LIMITATION OF ACTIONS-INJURIES TO REAL PROPERTY-"TRESPASS" -STATUTE-CONSTRUCTION. Comp. Laws 1907, sec. 2877, subd. 2, providing that actions for trespass on real property shall be commenced within three years, refers to the common-law action of trespass, which was the remedy for a wrongful entry on lands, and not to trespass on the case, and hence does not include an action against a railroad company for injuries to the house of one living near the road by the jar of the trains and the emission of smoke and cinders; the limitation applicable to such actions being four years under, section 2883, as an action not otherwise provided for. (Page 479.)

2. EMINENT DOMAIN

SUBJECTS OF COMPENSATION INJURIES TO PROPERTY-SMOKE AND VIBRATION. Except for the provisions of Const., art. 1, sec. 22, forbidding damage to private property for public use, no action would lie against a railroad company for mere consequential injury to real property by the jar of passing trains and the smoke and cinders, where the road was carefully and properly built and operated. (Page 479.)

3. EMINENT DOMAIN-INJURIES TO REAL PROPERTY-DAMAGES-EVIDENCE. In an action for injuries to plaintiff's house by the jar of defendant's passing trains and by the smoke and cinders, evidence was admissible for plaintiff of the cracking of the walls, the settling of the floors, and of other specific effects, though there was expert evidence as to the diminution in value of the property, especially where the experts differed widely in their evidence as to value, as the jury could better weigh the expert testimony in the light of actual results; and this notwithstanding that the cause of action was single, for which all damages must be recovered in one action, to be assessed as of the time when the first injury to the property occurred, however slight. (Page 481.)

4. APPEAL AND ERROR-HARMLESS ERROR-ADMISSION OF EVIDENCE. In such action, the admission of evidence that branches of a tree on plaintiff's premises had been cut by linemen in constructing a telegraph line on defendant's right of way, without connecting their acts with defendant, though error, was harmless, where no damages were claimed therefor, and, under the charge, none could have been allowed, especially as any damage from such acts would be so slight as not to call for reversal. (Page 483.)

5. EMINENT DOMAIN-INJURY TO REAL PROPERTY-DAMAGES-EVIDENCE. Nor was there error in admitting evidence that plaintiff had to pay a higher rate for fire insurance because of the proximity of the engines, since the defendant would only be liable for setting fire to plaintiff's house in case of negligence, and, in the absence of negligence, an insurance company would have no recourse to defendant for a loss which it had paid, so that there might well be an increase of rate to fall on plaintiff. (Page 483.)

6. APPEAL AND ERROR-HARMLESS ERROR-ADMISSION OF EVIDENCE. Any error in overruling an objection to the question whether plaintiff had to pay a higher rate for fire insurance because of the proximity of the engines, in that the particular hazard was not mentioned from which alone an increase could result, was harmless, where no evidence of the rates of premium was shown, so that no damages could have been awarded on that ground. (Page 484.)

7. EMINENT DOMAIN-INJURY TO PROPERTY-DAMAGES. In an action for damages to plaintiff's property by the jar of passing trains on defendant's road, and from smoke and cinders, the construction and operation of the road being conceded to be careful and proper, damages for negligent operation cannot be recovered, but only those which are the proximate result of careful and proper operation of the road. (Page 484.)

8. TRIAL-INSTRUCTIONS-CURE OF ERROR. There was no available error in failing to expressly limit the jury to the proper measure of damages where plaintiff's counsel repeatedly disclaimed during the trial any damages except on specified and proper grounds, and where the court, in effect, also properly limited the jury as to the measure and extent of damages to be allowed. (Page 484.)

APPEAL from District Court, Third District; Hon. M. L. Ritchie, Judge.

Action by William O'Neill against the San Pedro, Los Angeles and Salt Lake Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Penneil Cherrington for appellant.

D. B. Hempstead for respondent.

FRICK, C. J.

Respondent brought this action against appellant to recover for alleged injuries to respondent's dwelling house and premises, which, he alleged, were caused by the operation of appellant's engines and trains. The material allegations in the complaint, in substance, are: That respondent in January, 1904, became, and when this action was commenced continued to be, the owner in fee of certain real property in Salt Lake County; that ever since he became such owner he maintained a dwelling house on said premises in which he lived, and continues to live, with his family; that in the year 1905 appellant constructed a railroad track on premises belonging to it, which are immediately adjoining the premises of respondent as aforesaid, and that appellant ever since said time has maintained and continues to maintain said track, which is only twenty-one feet distant from respondent's said dwelling house on the premises aforesaid; that ever since the construction of said railroad track, and up to the commencement of this action, appellant has operated engines propelled by steam power to which were attached both freight and passenger trains, and which engines and trains were and are being operated over said track both by day and by night; that the operation of said engines and trains caused the ground upon which said dwelling house stands, together with said house, to tremble and shake, and by reason thereof the walls of said house have become cracked in various places, and said house by reason thereof is in a dangerous condition and will eventually fall; that the shaking of said house and the smoke and cinders incident to the operation of said engines and trains over said track have practically made said dwelling house uninhabitable, and have greatly reduced the value of appellant's said property. He further alleged that the damages sustained by him amounted to the sum of one thousand, and five hundred dollars, for which he prayed judgment. The appellant interposed a demurrer to the complaint on the ground that the action was barred by reason of subdivision 2, section 2877, Comp. Laws 1907, which, in substance, provides that "an