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  plantifTs  lots  is  evidently  an  obstruction  to  his
easement  in  the  street;  but  for  such  injury  the  statute  con-
templates no  remedy.  It  is  only  where  the  company  has
taken  possession  of  and  appropriated  property  in  the  con-
struction of  her  work,  that  its  owner  is  allowed  to  sue  for
damages  in  the  mode  prescribed  by  the  act  of  incorpora-
tion.
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  con-
struction of  her  work — ^there  being  no  remedy  given  by  her
charter — ^is  liable  as  at  common  law.  l\Ue  v.  TAc  Ohio
and  Mississippi  Railroad  ^Co.^  7  Ind.  R.  479. — HuUon  v.  The
Indiana  Central  RaUway-  Cb.,  id.  522. — The  Evansville^  ^e^
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.
C  H.  Test,  J.  S.  Newman  and  J.  P.  Siddall^  for  the  ap-
pellants.
Cl)  See  the  ang;iiment  of  oounsel  in  this  last  case,  9  Ind.  B.  437,  et  Beq,


OF  THE  STATE  OF  INDIANA-  99

May  Tenn,

Howard  v^  The  State  on  the  relation  of  Vawter.  1868.
