I desire to place my concurrence in the result in this case on grounds rather more limited than tfeose above given. In this case a general demurrer was sustained to the petition, upon which, the plaintiff having elected to stand, there was a judgment for the defendant. The demurrer, for present purposes, must be assumed to have admitted such facts as were well pleaded, and it therefore is necessary that the averments of the petition should be stated with more than ordinary fulness. The defendant was described as a corporation engaged in the maintenance, construction, and operation of street railways in the city of Omaha, and was described as the successor of another street railway company in rights and liabilities with respect to the street railway along plaintiff’s premises, hereinafter more particularly de*656scribed. The condition of the streets affected and their appropriation and nse by the predecessor of the defendant, as well as by the defendant itself, were described in the petition in this language: “That said lot (owned by plaintiff) is a strip of ground 240 feet in length east and west and 60 feet in width north and south, bounded on the east by Sixteenth street, on the south by Clarke street, in the city of Omaha; said Sixteenth street east bf said premises and Clarke street south of said premises, at the time of the happening of the grievances hereinafter complained of, were, and for a long time prior thereto had been, public streets of said city of Omaha, but not occupied, used, or obstructed by steam, electric, or horse railways in any manner whatever; that on or about the first day of September, 1889, a corporation known as the Omaha Motor Railway Company constructed a line of street railway over and upon Clarke street, immediately south of said premises, and over and upon Sixteenth street, immediately east of said premises, and commenced the operation of said line of railway over and upon said streets adjacent to said premises, the motive power used upon said street railway at the time of the construction thereof being electricity, poles for the purpose of supporting overhead wires being set in the ground along said streets and adjacent to said premises and overhead wires being attached thereto along said streets adjoining said premises. Plaintiff further says that ever since the construction of said street railway the same has been operated as an electric street railway, cars and motors passing over the line of said railway immediately adjacent to said premises and over Clarke street immediately south of said premises and Sixteenth street immediately east of said premises at intervals of about five minutes. Plaintiff further says that by reason of the location, construction, and operation of said line of street railway over and upon Clarke street immediately south of said premises and over and upon Sixteenth street immediately east of said premises and adjacent *657thereto, said, premises have been greatly depreciated, the location of the tracks, poles, and Avires of said street railAvay upon said Clarke and Sixteenth streets, as hereinafter described, greatly interfering Avith the egress from, and ingress to, said premises from said streets and obstructing the view from said premises looking tOAvard said streets, the passage of trains over said street railAvay upon said streets in front of and adjacent to said premises also greatly interfering with the ingress to and egress from said premises, rendering the same difficult and dangerous, and the noise and vibration incident to the use of said tracks by said defendant company greatly interféring with the comfort and convenience of persons occupying said premises, said premises having been lessened and depreciated in value, on account of the construction and operation of said street railway, in the sum of $20,000.”
The facts upon Avliich the plaintiff predicates his right of recovery are the taking possession of, and the using for, a street raihvay operated by electricity of two streets adjacent to his property. The first class of the elements of damages claimed refers to the effect of locating the tracks, poles, and wires as obstructions to ingress and egress and of the vieAv from the premises of plaintiff looking tOAvard the street. The other elements are the passage of trains oAffir the track, interfering with, and rendering dangerous, egress from and ingress to plaintiff’s premises, and the noise and vibration incident to the use of the tracks Avliich interfere with the comfort and convenience of persons occupying said premises. In respect to the last two, it may be said that it is noAV the settled doctrine in this country that, an ordinary street railway upon which cars are moved by horse-power is not an additional burden. (Citizens Coach Co. v. Camden Horse R. Co., 33 N. J. Eq. 267; Hobart v. Milwaukee City R. Co., 27 Wis. 194; Carson v. Central R. Co., 35 Cal. 325; Texas & P. R. Co. v. Rosedale Street R. Co., 64 Tex. 80; Elliott v. Fairhaven & W. R. Co., 32 Conn. 579; Chicago, B. *658& Q. R. Co. v. West Chicago S. R. Co., 40 N. E. Rep. [Ill.] 1008; Merrick v. Intramontaine R. Co., 24 S. E. Rep. [N. Car.] 667.) For the occupation and use of the street for ordinary street railway purposes it must, I think, be conceded that the defendant was not liable to plaintiff in damages upon the authority of these cases, hence I omit the allegations as to the occupation and use of the street by a track, for it is common to all street railways, whether operated by horse-power or electricity.
I shall now consider the respects in which the petition charges that the defendant’s .use of the street differed from that of an ordinary street railway operated by horse-power and in -what respects this different use has caused damage to be suffered by the plaintiff. These factors we have already grouped under the first class of elements of damages, and they are the- locating of poles and wires which obstruct ingress and egress and interfere with view from plaintiff’s premises across the street. The manner in which real property may be injuriously affected without being physically disturbed or entered upon is well illustrated by the following adjudicated cases: The city of Shawneetown, Illinois, built a levee in a street of that city for the purpose of protecting it against the overflow watérs of the Ohio river. The levee was about ten feet high, but was so constructed that its upper surface could be used as the street had been before the construction of said levee. An abutting lot owner sued the city'for damages, claiming that his lot had been depreciated in value by the presence in front of it of this levee, for the reason that it hindered liis free ingress and egress to and from his property, and the supreme court of Illinois held the city liable. (City of Shawnectown v. Mason, 82 Ill. 337.) The construction of the approaches to a bridge in such a manner as to obstruct the ingress and egress of an owner to and from his property was held to be such an injury as entitled such owner to maintain an action for damages. (Stack v. City of East St. Louis, 85 Ill; 377.) In Merrick v. Intramontaine R. Co., supra, it *659was said by Eaircloth, C. J., delivering the opinion of the supreme court of North Carolina: “If the street railway, should be so constructed — for instance, if it should shut out or shut off the abutter with embankments, and thus materially impair his rights — this would seem to be an additional burden and subject the company to damages.” These adjudicated cases serve to illustrate the fact that in plaintiff’s petition the averments that the location of the poles and wires of the street railway upon Clarke and Sixteenth streets in such a way as to interfere with plaintiff’s ingress and egress and his view from his premises towards said streets, in connection with the allegation that thereby his real property had suffered depreciation in value, sufficiently stated a cause of action in view of section 21, article 1, of the constitution of this state, which is as follows: “The'property of no person shall be taken or damaged for public use without just compensation therefor.” As further illustrating the applicability and purpose of this constitutional provision, see also Gottschalk v. Chicago, B. & Q. R. Co., 14 Neb. 550; City of Omaha v. Kramer, 25 Neb. 489; Chicago, K. & N. R. Co. v. Hazels, 26 Neb. 364; and Omaha & N. P. R. Co. v. Janecek, 30 Neb. 276. I have considered this case as it was presented by the averments of the petition which the demurrer admitted to be true, and, tested by the requirements of liberal construction laid down in Roberts v. Samson, 50 Neb. 745, there was stated a cause of action. If there exist facts which should serve to change or modify our views, these facts, I think, should be pleaded by the defendant, for we cannot assume their existence. For the reasons above stated I concur in the conclusion. The judgment of the district court should be reversed.