This is a common-law action of trespass on the case, and was brought by plaintiff in error against the defendants in error in one of the nisi prius courts of the state of Virginia. The substance of the plaintiff's declaration is as follows:
That he was the owner in fee of a lot of land fronting on Eighth street, between Cary and Canal streets, on which were located two brick buildings, the first floor of which was used for store purposes and the second story as dwellings; that said property, previous to the obstruction of Eighth street as hereinafter described, was very profitable as an investment, being continuously rented to good tenants, who promptly paid remunerative rents for the same; that on the 25th day of June, 1886, the city council of Richmond, by ordinance, authorized the Richmond & Alleghany Railway Company to obstruct, for the distance of 60 feet (commencing at Canal street, in the direction of Cary street), Eighth street, and by virtue of which said railway company wholly obstructed and occupied said street for said distance with its tracks, sheds, fences, etc., except to pedestrians, for whom said company was required to provide by overhead bridge and stairway approaches thereto. It was averred in said declaration that, 'by means of this obstruction so made by said company by authority of said city, travel along said street was arrested, and the property rights of your petitioner as an abutter upon said street were not only substantially injured, but practically destroyed; that the city had no right, under the constitution and laws of the land, to authorize the said railroad company to close said street or place obstructions therein without proper legal proceedings for that purpose, and the making of just compensation to such abutting owners as might be injured by said action; that this unconstitutional and illegal action rendered said defendants liable to your petitioner, as trespassers on his property, for all damages that he had sustained not common to the public'; that the obstructions were in themselves nuisances which the city was charged with the duty of abating and moving, and that every day's continuation of the same was a new offense; that the rights, privileges, and obligations of said Richmond & Alleghany Railway Company had been legally transferred to and assumed by said Chesapeake & Ohio Railway Company; and that it (the said last-named company) now maintained the said obstructions, and was therefore liable, jointly with said city of Richmond, for the said trespasses. A plat of the locus in quo and a copy of said ordinance were made parts of said declaration.
Damages were claimed in the sum of $5,000.
On the 9th of September, 1895, the defendants entered a general demurrer to the whole declaration and each count thereof, in which the plaintiff joined; and on the 27th of December, 1895, the court sustained the demurrer, and gave judgment for the defendants, dismissing the action.
And thereupon the plaintiff, by counsel, moved the court to set 'aside the said judgment and enter judgment for him on said demurrer; and it being represented to the court that it is the intention of the plaintiff in the case of H. Wythe Davis against the city of Richmond and the Chesapeake & Ohio Railway Company to apply for a writ of error to the judgment of this court entered this day in that cause, and the questions involved in that case being the same as in this case, the court takes time to consider of said motions, and by consent of parties this case is retained on the docket of this court, and the determination of said motions to await the result of the application for a writ of error in the case of H. Wythe Davis against the city of Richmond and the Chesapeake & Ohio Railway Company.'
On the 31st day of January, 1896, the following proceedings were had:
'This day came the parties again, by their attorneys; and the court, being now advised of its judgment to be rendered herein, on the motion of the plaintiff to set aside the judgment rendered on the demurrer to the plaintiff's declaration and to each count thereof, doth refuse to set aside said judgment.