The case here presented for examination and review is peculiar. The case made by the complaint is one against the receiver, who was appointed July 9, 1884, and entered into the possession and assumed the management of the property on the 11th of the same month, for special damages and injury to the property of defendant in error by acts alleged to have been committed by him, commenc-' ing on, to wit, September 1,1884. It is alleged in the third paragraph of the complaint that at that date the receiver entered upon the street between the former embankment and the sidewalk in front of the premises, built another embankment eight feet wide and six feet high, using all the street upon that side and two feet of the sidewalk, “ so that by the wrongful act of said receiver all ingress and egress to and from her said lots have been wholly cut off for vehicles of all kinds, except upon the sidewalk, the safety of her said property injured, the comfortable and profitable enjoyment thereof invaded, the rental values decreased one-half, and the actual value thereof decreased in the sum of $1,500.” In the former part of the same paragraph it is stated, as a necessary part of the history’ of the case, that long prior to the appointment of the receiver the road had been built; that there was in the middle of the street an embankment six feet high, wide enough for two tracks, etc.; and that from the time of its construction to the appointment of the receiver the railroad company had continued to operate the road, etc. There is no allegation of damage and diminution of value of the property by reason of its original construction and operation from its inception down to September 1, 1884,— no complaint or claim for damage. It seems to have been conceded that defendant in error bought the property subject to all the inconveniences arising from the former building and subsequent operation of the road, as it had been built and was being operated at the *589time of such purchase. The only acts complained of, and for which damages were sought, were those of the receiver, as shown in paragraphs 3 and 4 of the complaint. These allegations in the complaint were specifically denied in the general answer, and again in the second defense, where it is' said: “ And this defendant further alleges that the said embankment on which’ said railway is situated, along and at the side of the premises of the plaintiff, has not been raised or widened since the year 1880; that the grade line of railway along said street is still the established grade of said street ns such.”
The issues so made were the only ones that could have been properly tried under the complaint. But plaintiff in error, after specifically traversing the allegations in the complaint, did not deem it sufficient, but pleaded the right of way obtained from the city, and alleged the original building and operation of the road in front of the property in nearly the same language that the fact was stated in the complaint, and adding the plea of the statute of limitations. The extent and scope of the suit seem to have been misconceived by plaintiff in error, and regarded as a proceeding to recover damage for the original construction,— on no other theory can we understand its defenses, — and the eminent judge before whom the case was tried seems to have fallen into the same error. The case, as made by the pleadings against the receiver for alleged injuries to the property after September 1, 1884, was not tried at all. Some testimony in regard to the alleged injuries was' introduced by plaintiff in error, which we shall have occasion to refer to hereafter. The inquiry to which the testimony was directed was that propounded to the first witness, and runs through the entire testimony of defendant in error, viz., the value of the property in its present condition, and what its value would have been if the railroad had never been constructed and operated. And the same question is distinctly submitted to the jury by the first paragraph of the instruction given by the court, and afterwards condensed, and again' *590given in these words: “ The question, then, will be simply as to the difference in value by reason of the building and operating of the road upon the established grade, as compared with the value of the property before the construction of the road.” The instruction, aside from not being directed to any issue in the case, is hard to be understood and applied. It was alleged and conceded that the road was constructed in 18Y1. We can find no testimony in the record to show what the value of the property was before the construction of the road or for some years afterwards. It will be observed that no instruction whatever was given by the court regarding the alleged wrongful acts of the receiver, and special damage by reason of the alleged further use and appropriation of the street by the receiver after September 1, 1884, for which the suit was brought and upon which the issues were made. It is ably contended in argument by counsel for plaintiff in error that defendant in error, who became the purchaser of the property in 1883, could not maintain an action for damages to the property for the building and operation of the road, as it had been built and operated some twelve years before she became the owner, and cite numerous authorities in support of the proposition. They also contend that the instructions asked in support of their position, numbered 4, 5 and 6, should have been given, and that the refusal was error. In a proper case, where the question was properly raised and necessary to be determined, we might agree with counsel, and hold that a refusal so to instruct was error. Ditch Co. v. Anderson, 8 Colo. 131; Railroad Co. v. Loeb, 118 Ill. 203; Railroad Co. v. McAuley, 121 Ill. 160; Railroad Co. v. Maher, 91 Ill. 312; Bizer v. Power Co. 70 Iowa, 145; Railroad Co. v. Strange, 63 Wis. 178. But this would not preclude the owner from recovering special damages for unwarranted acts further diminishing the value of the property after he or she became the owner.
Counsel for defendant in error urge that the judgment should be affirmed, and say, in speaking of the cause of *591action as stated in the complaint: “ She alleges the construction of the railroad as originally constructed long prior thereto, but only by way of inducement. * * * She then shows the appointment of Jackson as receiver, and that on September 1, 1884, and subsequently, he caused the damage complained of; ” reiterating the allegations of the complaint. Then adds: “ It was for this additional burden thus imposed that plaintiff sued and recovered after a trial before a most careful and learned judge. * * * The recovery was limited to the damages sustained between the date of the addition to the embankment, September 1,1884, and the service of the summons, February 19,1886. * * * The injuries complained of could not have accrued to the grantor of the plaintiff, because they arose long after her title accrued.” Again, counsel say: “We do not sue for the operation of the railroad constructed and in use at the date of our purchase, but for the invasion of our right to the occupancy and use of a part of a public .thoroughfare open to public use at the date of our purchase, and taken afterwards by the defendant for railroad purposes, whereby we were entirely foreclosed of the use of the street on which our lots abut.”
The statement of counsel in regard to the scope, intent and object of the suit, as stated in the complaint, is correct. But we cannot agree with their conclusion that the recovery was limited to damages accruing after September 1, 1884. We can find no testimony introduced on the part of defendant in error (plaintiff below) in support of thq allegations in the complaint of the wrongful acts of the receiver after his appointment. Two or three witnesses testified to an increased use of the street by widening and raising the embankment and the addition of tracks between the date of its construction and bringing suit, but no dates are given except by the witness Eckels, who says: “ The change was made in the spring of 1881.” The whole inquiry on the part of defendant in error on the trial seems to have been predicated upon the supposed right to recover damage for the *592original construction and subsequent operation of the road. On the part of the defendant (plaintiff in error) two or three witnesses testified that, after the appointment of the receiver, only changes of slight importance were made; consequently the case attempted in the complaint fails for want of evidence, and the judgment was erroneous. But, as shown above, there was an entire departure, and the trial of another and different case. The judgment should be reversed and the- cause remanded.
Richmond and Bissell, 00., concur.
Per Curiam.For the reasons stated in the foregoing opinion the judgment is reversed and the cause remanded.
Reversed.