The nature of this case, which was an action of trespass, is clearly and concisely set forth in the opinion filed by the learned president judge of the court below.
The learned referee concludes his discussion of the case as follows:
“The plaintiffs appeared before the viewers and obtained an award and afterwards entered judgment by agreement. *220In those proceedings they were entitled to judgment for all damages occasioned to the property, and the viewers could take into consideration the use of the premises for the business carried on upon them at that time, and the value might in this way be enhanced. At any rate, such use could be put in evidence for the purpose of obtaining the actual value before and after the construction of the viaduct. I know of no other element of damage involving the value or injury to business that may be considered.” It should be noticed, in connection with the foregoing, that negligence is not alleged in the plaintiff’s statement of claim in the present case. . We think it clear, therefore, that the court below was right in sustaining the referee’s conclusion of law, which was to the effect that the plaintiff had shown no cause of action.
The judgment is affirmed.