action for waste or trespass of real property" must be commenced within three years after the cause of action has accrued. The demurrer was overruled, and the appellant answered, denying that respondent was the owner of the property, but admitted that it had constructed a railroad track, and that it operated engines and trains over it as alleged, and denied all other allegations contained in the complaint. As an affirmative defense appellant in its answer again interposed the plea that the action was barred upon the grounds stated in the demurrer. At the trial respondent, in substance, proved the allegations of his complaint, and in that regard showed to what extent the operation of the engines and trains had injured his dwelling house by shaking it, in consequence of which the walls were cracked and had settled, and that the house was otherwise injured. Respondent also produced two expert witnesses who were qualified to testify to the value of the premises both before and after the railroad was constructed and operated. One of those witnesses testified that the construction, maintenance, and operation of the railroad had depreciated the salable value of respondent's premises to the extent of one thousand, five hundred dollars, and the other one testified that the premises were depreciated for the reasons aforesaid to the extent of one thousand, two hundred dollars. Appellant also produced two experts who testified with respect to the effect the operation of the railroad had upon the premises in question. One said that the construction and operation of the railroad depreciated the value of the property to the extent of four hundred dollars, and the other one placed it at two hundred dollars. After the evidence had all been submitted by both parties, the jury were permitted to inspect the premises, after which they returned a verdict in favor of respondent for the sum of one thousand, two hundred dollars. The appellant moved for a new trial. One of the grounds for a new trial was that the jury had allowed excessive damages. The court required the respondent to reduce the verdict to the sum of eight hundred dollars or submit to a new trial. Respondent elected to

accept the sum of eight hundred dollars, and the court entered judgment for that amount, from which judgment this appeal is prosecuted.

We shall consider only the errors argued by appellant's counsel in his printed brief.

1

The first error assigned by him is that the trial court erred because it held that the action was not barred for the reasons before stated. In this connection appellant's counsel contends that the action is one which comes within the provisions of subdivision 2 of section 2877, supra. While it is true that, under our Constitution and statutes, all forms of actions have been abolished, and, for that reason, the common-law names that were applied to the various actions or remedies no longer have any practical force or effect, yet, when a court is called upon to give effect to a particular statute, the old terms, as used by the common-law writers, cannot be entirely ignored. In section 2877, supra, the term "trespass" is intended to be understood as that term always has been understood when applied to real property as contradistinguished from the general meaning of that term when applied to wrongs or transactions generally. The term "trespass," as used in section 2877, supra, must therefore be applied in a restricted sense, and, when so applied, it means a wrongful entry upon lands or the unlawful entry by one person upon the lands of another. In Hornsby v. Davis (Tenn. Ch.) 36 S. W. 164, it is said: "In law every entry upon the soil of another, in the absence of lawful authority, without the owner's license, is a trespass." For authorities sustaining the foregoing views, see Words & Phrases, p. 7089, where the cases with respect to the term "trespass" as applied to real propetry are collated. We are clearly of the opinion that the cause of action declared on in the case at bar is what at common law was termed an action on the case, and not one for a trespass. We are also of the opinion that, were it not for the provisions contained in section 22 of article 1 of the Constitution of this state, an action would lie for mere consequential injuries to real property by reason of

2

the construction and operation of the railroad, where, as in this case, it is conceded that the railroad was carefully and properly constructed and being operated with due and proper care, and that no part of the property has been taken or physically invaded. We have heretofore had occasion to illustrate and apply the conditions and circumstances under which actions for damages arising out of the construction and operation of a railroad may be maintained. In the case of Morris v. O. S. L. R. Co., 36 Utah 14, 102 Pac. 629, a recovery was permitted upon the theory that the property was damaged within the purview of the constitutional provision referred to. That case in principle cannot be distinguished from the case at bar. In the case of Twenty-Second Corporation, etc., v. O. S. L. R. Co., 36 Utah 238, 103 Pac. 243, 23 L. R. A. (N. S.) 860, a recovery was denied because the alleged damages did not come within the constitutional provision aforesaid. The recovery in the Morris Case supra, was, however, not permitted upon the ground that the inju rious acts complained of constituted a trespass on real property. We are clearly of the opinion that actions like the case of Morris v. O. S. L. R. Co., supra, and one like the case at bar, fall within the provisions of section 2883, which provides for a four-year limitation in all cases that are not otherwise specially provided for. If we are right in our conclusion that this action is not one which falls within the provisions of section 2877, supra, then there is no other special provision governing it, and hence it must come under the general provisions contained in section 2883. Such is likewise the conclusion reached by many courts. See Omaha & R. V. Ry. v. Moschel, 38 Neb. 281, 56 N. W. 875; Pratt v. D. N. N. Ry., 72 Iowa, 249, 33 N. W. 666; 2 Lewis, Em. Dom. (3d Ed.), section 968, where some of the cases are collated. See, also, note to Wells v. New Haven & N. Co., 1 Am. R. R. & C. Rep., commencing at page 719 to 724; 2 Lewis, Em. Dom. (3d Ed.), sections 890-892. This assignment must therefore be overruled.

The next assignment relates to the admission of evidence. During the trial the court permitted the respondent to show,

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over the objection of appellant, in what praticulars the operation of the railroad injured the dwelling house by the cracking of the walls, by the settling of the floors, and other specific effects. Evidence was also admitted over appellant's objection with regard to the burning of the leaves of a tree by the engine, and that some of the limbs or branches of the tree had been cut by some linemen who put up a telegraph line along appellant's right of way. The evidence with repect to the effect that the passing of the trains had upon the house was in our judgment clearly proper, notwithstanding the testimony of the expert witnesses who testified respecting the diminution of the value of the property. By having the jury fully informed with regard to the effect the movement of the trains had upon the house, they could better understand and apply the testimony of the experts respecting the depreciation of the value of the property. The mere fact that expert witnesses were so far apart with regard to the depreciation of the value of the property is alone a sufficient justification for permitting the jury to become informed of the actual condition of the property both before and after the railroad was constructed and operated. True, in cases like the one at bar the damages must be recovered once for all in one action, and must be assessed as having occurred at the time when the first injury to the property arose because a complete cause or right of action then arose in favor of respondent. To this right nothing could be added, since it was just as complete a cause or right of action after the first train passed the house and shook it and injured it to some extent as it was after a hundred trains had passed and had shaken it, and injured it more. Since the railroad was, however, constructed as a permanent structure and was intended to be operated as a continuing enterprise, the injury and damages. to the house and premises were also continuing, and could more easily be percieved and understood after a hundred trains had passed than they could have been after the first one had done so. No doubt a person of ordinary intelligence

38 Utah-31

and experience after noting the effect that the passing of one train had upon the house could, in a measure at lest, foreshadow the effect that the passing of a hundred or a thousand similar trains would have, and in that way such person sould approximate the depreciation of the value of the premises for dwelling purposes. If the action, therefore, had been brought immediately after appellant had commenced the operation of its trains, and after the house had had been shaken for a few times only, any person of experience with special knowledge upon the subject of buildings could have imagined the effect a continued shaking of the house would have, and thus, as we have said, in a measure at least, could have approximated the damages. This is the theory or method, as we understand counsel, that he insists should have been pursued rather than to permit the witnesses to state the actual condition of the house as this condition was seen several years after the actual cause of action had arisen. We have already stated, and counsel for both parties agree with us, that all damages, whether immediate or prospective, in actions like the one at bar, must be recovered in one action, and must be assessed as of the time when the cause of action arose whether the damages were then actually visible or not. This would, however, not require the claimant to bring an action immediately, nor would it prevent him from showing just what effect the proper operation of the trains had upon the premises in question, provided he brought the action within the statutory period to which we have referred. In considering such evidence, however, the court and jury no doubt would have to exercise care to limit it to the actual effect attributable to the proper operation of the trains and to exclude the effects of the elements, natural wear and tear, and the usual deterioration of the building. So far as the evidence was limited to the actual effect of the passing of the trains and engines, the court, in view of the instructions to the jury, committed no error in permitting the evidence complained of.