This suit was commenced before a justice of the peace, under the act incorporating the railway company. The complaint alleges that Boden, who was the plaintiff, is the owner of lots 9, 10,11, 12 and 13, in block 14 in Cambridge City; that the company had seized upon the lots, rendered them useless to the owner, and appropriated them to her own use. It is averred that the plaintiff is greatly injured; that he has sustained damage to the amount of 1,500 dollars; and, therefore, he makes complaint, &c. Pursuant to the act, the parties selected arbitrators, who returned an award, upon which the justice rendered judgment. The company appealed.
In the Circuit Court, the jury, to whom the cause was submitted, found specially as follows: That the company located and constructed her railway on and upon a certain street in Cambridge City, upon which street the plaintiff’s lots bound and front, and has erected an embankment immediately in front of said lots, so high above the former level of the street as to cause the water and dirt to run and slide down from the embankment to and upon the lots, thereby hindering egress and regress from them to and along the street. And further, the jury found generally for the plaintiff, and assessed his damages at 125 dollars. The defendant moved for a new. trial and in arrest; but her motions were overruled, and judgment rendered, &c.
Section 3 of the act of incorporation to which we have referred, provides, inter alia, that, in all cases where the owner of lands, stone, wood or other materials, necessary for the use and construction of said road, shall refuse to relinquish the same, or accept a fair compensation therefor,, it shall be lawful for the corporation, by their agent, &c.„ to enter upon, take possession of, and use the same, avoiding, in all cases, unnecessary damage to the owner; and where such owner may feel aggrieved or injured in consequence of such use of his land, &c., he shall make written complaint before the nearest justice of the peace, setting forth the nature» and locality of the injury, &c., whereupon, such justice shall require the president of the company to *98appoint one disinterested appraiser, and the complainant another, which appraisers, so appointed, shall, upon computation of the damages, make up their award, and report the same to the justice, &c. Local Acts 1849, p. 92.
C. H. Test, J. S. Newmam and J. P. Siddall, for the appellants.Does the remedy thus prescribed embrace the case made by the record? This is the only question before us.
The special verdict does not allow the conclusion that the lots described in the complaint, or any part of them, were seized and appropriated to the use of the company, nor does it appear that they were entered upon and used, within the meaning of the statute. The embankment in front of the plantiff’s lots is evidently an obstruction to his easement in the street; but for such injury the statute contemplates no remedy. It is only where the company has taken possession of and appropriated property in the construction of her work, that its owner is allowed to sue for damages in the mode prescribed by the act of incorporation.
Still, the plaintiff is not without remedy; because it has been often decided that a railroad company, for an injury which necessarily results to private property from the construction of her work — there being no remedy given by her charter — is liable as at common law. Tate v. The Ohio and Mississippi Railroad Co., 7 Ind. R. 479.—Huttons. The Indiana Central Railway Co., id. 522.—The Evansville, &c., Railroad Co. v. Dick, 9 Ind. R. 433 (1).
The plaintiff, having improperly instituted his suit under the act incorporating the company, and the damages claim-’ ed being an amount to which a justice’s jurisdiction does not extend, the judgment must be reversed.
Per Curiam. — The judgment is reversed with costs.
See the argument of counsel in this last ease, 9 Ind. R. 437, et seq.