By the Court :
Held—
1. That the plaintiff is entitled to damages for any obstruction to the street by earth, timber, or rail, substantially affecting the use of it by the plaintiff, as an appurtenance to his premises.
2. That in respect of noise, smoke, or other discomforts, ai'ising from the ordinary use of the railroad by the company, the plaintiff has no more right to recover than any citizen who resides or may have occasion to pass so near the street as to bo subjected to like discomforts. That a railroad authorized by law, and lawfully operated, can not be deemed a private nuisance.
Demurrer overruled and case remanded.
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