delivered the following response TO A PETITION FOR A REHEARING:
This case was argued by counsel and considered by the court on the original hearing as one involving the location' of a street railway on a street of a town. It developed from an inspection of an averment in one of the various pleadings — filed, not by the appellee, but by the appellant —that the location of Faulkner’s property is in fact not within the corporate limits of a town. We can not, when presenting it for the first time, consider a matter of this importance on rehearing. In the opinion, however, we hold the evidence of injury by obstruction insufficient for submission, and to this extent we modify the original opinion. It is true that the plaintiff himself neither in his *360examination in chief nor in his cross-examination makes out a case of obstruction to his property. He rests his case on the claim that his lot had been absolutely invaded, and á part taken by the company; and even Avhen recalled, later in the progress of the trial, his testimony on the point involved is incompetent, and too general to support a claim for damages for obstruction. There is some testimony, however, by other witnesses, conducing to show that the ingress and egress had been obstructed by the track of the railway; and we know from common observation that the rails of such a road do in a measure obstruct the ingress and egress, when room is not left for passage between them and the abutting property. The question should be left to the jury to determine to what extent the property has been damaged by reason of this obstruction.
We think the damages on this branch of the case are shown by the proof to be quite small, and we adhere to the original opinion that on the whole-case the damages found are excessive. On return of the case, either party may amend their pleadings, raising such issues as may be involved. Petition overruled.