Opinion of the Court.

of the court. 2 Sellon's Practice, 313, 321, 325. And in mandamus, if the case were not governed by the return to the alternative writ, but a traverse of the return was allowed, issues were made up and a trial had. If the matter can be disposed of upon the rule to show cause, that course may be pursued, but the applicable principles are the same. The alleged want of jurisdiction depends upon questions of fact. It was purely discretionary whether this evidence should be admitted at the time it was presented; and in a proceeding involving the inquiry under consideration, it was plainly our duty to permit it to come in, the petitioner being afforded, as he was, the opportunity for explanation and the introduction of such other evidence as he chose to produce.

In Ex parte Hitz, Petitioner, 111 U. S. 766, which was an application for a writ of certiorari, commanding the Supreme Court of the District of Columbia to certify to this court an indictment and the proceedings thereunder, on the ground that, when the indictment was filed and when the offences therein charged were committed, he was the diplomatic representative of the Swiss Confederation, the court directed a preliminary inquiry, and, in doing so, Mr. Chief Justice Waite said: "As it is conceded that the petitioner is not now in the diplomatic service of Switzerland, and was not when all the proceedings in the Supreme Court of the District of Columbia subsequent to the indictment were had, counsel are directed to request the Secretary of State to certify whether John Hitz was at any time accredited to and recognized by the government of the United States as public or political agent or chargé d'affaires of the Republic of Switzerland, and if so, for what period of time, and up to and including what date." The counsel having complied with that request, the court upon receiving the information as to what the records of the department showed, dismissed the petition.

Regarding the matter in hand as in its general nature, one of delicacy and importance, we have not thought it desirable to discuss the suggestions of counsel in relation to the remedy, but have preferred to examine into and pass upon the merits. We ought to add that while we have not cared to dispose

Syllabus.

of this case upon the mere absence of technical evidence, we do not assume to sit in judgment upon the decision of the executive in reference to the public character of a person claiming to be a foreign minister, and therefore have the right to accept the certificate of the State Department that a party is or is not a privileged person, and cannot properly be asked to proceed upon argumentative or collateral proof.

Our conclusion is, as already stated, that the District Court had jurisdiction, and we accordingly discharge the rule and Deny the writs.

NEW YORK ELEVATED RAILROAD COMPANY v. FIFTH NATIONAL BANK.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

A party cannot take exception to a ruling under which a trial has been conducted by his procurement or with his acquiescence.

In an action by the owner of a building and land abutting on a street in the city of New York, against a company which had constructed an elevated railroad and station-house over and along the street, the plaintiff claimed damages for the injury to the use and enjoyment of his property by obstructing the passage of light and air and diminishing the rents, and also for the permanent injury to the market and rental value of the property. Evidence, offered by the plaintiff, of the value of the building, before and after the construction of the railroad, was excluded by the court upon the defendant's objection. The defendant contended that the plaintiff's damages should be limited to the date of bringing the action. But the court ruled that they might be recovered to the time of the trial; and evidence was introduced in accordance with that ruling without objection or exception by the defendant to the admission of the evidence, or to the ruling under which it came in. Held, that the defendant could not except to a subsequent refusal of the court to admit evidence that the value of the plaintiff's property had been increased by the construction of the railroad; nor to an instruction allowing damages to be recovered to the time of trial; nor to the refusal of an instruction, requested by the defendant after the charge, that the recovery could be had only for the permanent injury to the plaintiff's property.

Statement of the Case.

An abutter on a street in the city of New York may recover against a company constructing an elevated railroad and station-house in front of his building, damages for the discomforts and inconveniences in the occupation of the building, caused by the erection of the defendant's structure, independently of the running of trains thereon.

THIS was an action brought March 5, 1880, by a national bank against an elevated railroad company to recover damages for the construction of the defendant's track and stationhouse in front of the plaintiff's banking-house at the southwesterly corner of Third Avenue and Twenty-third Street in the city of New York.

The complaint claimed damages for the interference with the use, enjoyment and value of the plaintiff's building, anc the obstruction of light and air, by the construction of the defendant's track and station; and for the interference with the use, comfort and enjoyment of the building by the plaintiff, its officers, servants and tenants, caused by the noise, steam, smoke and noxious smells attending the running of the trains, and for the consequent lessening of the rents and profits of the building; and also for the permanent injury to the use of the building and to its market and rental value, by the construction of the track and station, and by the jarring and concussion attending the running of the trains.

The answer denied that the plaintiff had any interest in Third Avenue and Twenty-third Street, except as shared with the public at large; denied the other allegations of the complaint, except that it admitted the erection of the elevated railway and station; and alleged that these structures were authorized by and in conformity with the statutes of New York of 1850, c. 140; 1866, c. 697; 1867, c. 489; 1868, c. 855; 1875, cc. 595, 606.

A verdict recovered by the plaintiff at a trial in February, 1885, was set aside and a new trial ordered. 24 Fed. Rep.

114.

At the second trial, in June, 1886, it appeared that Third Avenue and Twenty-third Street were laid out many years ago under the statute of New York of 1813, c. 86, § 178, by which the city acquired the title in fee of public streets,

Statement of the Case.

avenues, places and squares, "in trust, nevertheless, that the same be appropriated and kept open for and as part of a public street, avenue, square or place forever, in like manner as the other public streets, avenues, squares and places in the said city are, and of right ought to be;" that the plaintiff bought its land and erected its building in 1874; that the building was four stories high, with business offices in the basement, the plaintiff's banking-house in the first story, and apartments let to tenants in the stories above; and that the defendant, under and in conformity with the authority conferred upon it by the statutes of New York, constructed in 1878, and had since maintained, a railway track over and along Third Avenue, fifteen feet above the surface of the street, and fifteen feet wide, supported by iron columns, and the west side of the track being about thirty-five feet from the west side of Third Avenue; and also a station-house, with stairs leading to and from it, at the intersection of Third Avenue and Twentythird Street; and that locomotive engines and trains constantly passed over the track in front of the plaintiff's building.

The plaintiff's cashier, called as a witness in its behalf, testified, without objection by the defendant, that the track and station obstructed the access of light to and the circulation of air in the bank on the first story and the apartments on the second story, and compelled the plaintiff to use gas by day in the bank; and that this effect continued to the time of the trial.

He also testified, without objection, that "the structure, as it existed there, the elevated railway station and the platform and the bed of the road," reduced the rents of the building. He was then asked: "How much a year?" The defendant's counsel interposed, and asked for "an election on the part of the counsel for the plaintiff as to whether in this action they are claiming for loss of rents, or for injury in consequence of the erection of the road." The court declined to require the plaintiff's counsel to make an election, but directed them to confine themselves to proving in any proper way that the structure as a permanent thing, without regard to the running of trains upon it, injured the plaintiff's building. The cashier there

Statement of the Case.

upon testified, without objection by the defendant, that there had been a loss in rents of $1000 a year since the structure had been there, and down to the time of trial.

The plaintiff offered to prove the value of the building, before and after the defendant's elevated railroad was built. This evidence was objected to by the defendant, and excluded by the court. Thereupon the following colloquy took place:

Defendant's counsel: "You only come down to the commencement of this action, I suppose? I wilb ask counsel to make a determination of what he is going for. I suppose I have a right to ask for an election at this point."

The court: "For what length of time do you claim to recover?"

Plaintiff's counsel: "We claim for permanent injury."

The court: "If you are entitled to recover, you claim damages should be assessed by the jury until now?”

Plaintiff's counsel: "No, sir; but until as long as grass grows and water runs."

The court: "May be they will take it down; if they should, then you would not want to pay back anything. But you claim the right to recover prospectively. Counsel is entitled to know what you claim. I think the common law is, as I stated it, that where there is a consequential injury resulting from damages the damages may be recovered up to the time of the trial, and if they continue the right of recovery continues also. I think I will go by the common law, unless I see to the contrary before the trial closes."

Other witnesses were afterwards called and examined by both parties, without objection, as to the diminution of the light, air and rental of the building, from the time of the erection of the defendant's structures to the time of the trial; and as to the causes of such diminution.

Evidence that the value of the plaintiff's property had increased since the erection of this railroad structure, was offered by the defendant, and objected to by the plaintiff. The court sustained the objection and excluded the evidence, and the defendant excepted.

At the close of the evidence, the court denied successive