ON PETITION EOB BEHEAEING.
Pee Cubiam.As indicated by the foregoing opinion, there is a manifest distinction between an action by the owner of abutting property for permanent damages occasioned by the construction and operation of a railroad through a public street in an ordinary, proper and lawful manner, and an action for the use of such street by a railway company in an improper manner. In actions of the former kind the damages, if any, are for the diminution in the market value of the abutting property for any reasonable use to which the same may be put; and the statute of limitations begins to run in such cases from the time the railroad company first occupies the street for such purpose. In actions of the latter kind, the law in respect to nuisances in the public highway applies; and the cause of action, if it exists at all in favor of a private party, may arise each day so long as the nuisance continues. The leading cases in this state upon these subjects are, The City of Denver v. Bayer, 7 Colo. 113, and Jackson v. Kiel, 13 Colo. 378. In the latter case Mr. Justice Helm sustained the complaint, on the ground that it was “framed upon the theory of an unlawful obstruction or abatable public nuisance, whereby plaintiff suffered a special and peculiar private injury.”
In the present case it appears that a demurrer was sustained to the original complaint apparently on the ground that the complaint was framed on the theory of permanent *284damages, and so was barred by the statute of limitations. The amended complaint, as shown by the former opinion, was obviously framed upon the theory that the manner of occupying and using the street by the defendant company in front of plaintiff’s premises was a nuisance from which plaintiff suffered peculiar injuries not shared by the general public. Even if the complaint be held sufficient upon the latter theory, it was nevertheless necessary that the proof should show, not merely that plaintiff was injured by use of the street in an unlawful manner, but that the injury was different in kind from that suffered by the general public from the obstructions complained of. The fact that plaintiff had occasion to use the street more .frequently than other persons for purposes of ordinary travel, might make his injuries greater in degree, but not necessarily different in kind.
It has been strongly urged on the rehearing that the amended complaint alleges the use of the street in an improper manner the whole distance between 18th and 19th streets ; but it is not shown by the complaint that the injury thus occasioned to plaintiff differed in kind from the injuries suffered by the public generally, except, perhaps, in that portion of the street directly in front of his premises. In this respect the present case differs from the Kiel case. The court should, therefore, have restricted the recovery as requested by the instruction quoted in the foregoing opinion.
In Frankle v. Jackson, Receiver, 80 Fed. Rep. 398, cited by counsel for appellee, the opinion of the court shows that the street was used in an unlawful and improper manner “ on the side of the street adjacent to her (plaintiff’s) property, and that this was done without her consent and without compensation.” The decision does not militate against the views we have expressed, but confirms them in most particulars.
The petition for rehearing must be denied.
Rehearing denied.