Denver, U. & P. R. v. Toohey , 15 Colo. 297 ( 1890 )

Bissell, C.

It is unnecessary to repeat what has already been decided in the case of Railway Co. v. Barsaloux, ante, p. 290.

Por the reasons given in that opinion it is evident that Mrs. Toohey cannot maintain her bill, and is entitled to no relief under the proofs which she has made. But her case need not be put upon those grounds alone. Upon the record this release is an insuperable obstacle to her recovery. If she had suffered any damage from the original construction of the road she had been fully compensated for it; and, for a valuable consideration, had released the company therefrom, hfo subsequent use of the street for railroad purposes, nor any further operation of the road, could give to Mrs. Toohey any right of action without sufficient proof by her that a new use, or a new mode of operation, had in some fashion so damaged her as to give rise to a cause of action based dn such new use or such new mode of operation. This the evidence fails to establish.

Por this reason, as well as those which are assigned in the preceding opinion, the decree in favor of Mrs. Toohey must be reversed and her cause remanded, with directions to the court below to dismiss her bill at her own costs.

Peed and Bichmond, OO., concur.

Per Curiam.

Por the reasons stated in the foregoing opinion the judgment of the court below is reversed and the cause remanded, with directions to dismiss the suit.

Reversed.