Beronio

— The town of San Buenaventura is a municipal corporation. The legal title to the lands comprising Front Street in said town was granted to the then town authorities October 13,1869, “as a public street, to be forever kept open and maintained as such, and not to be used for any other purpose, nor be diminished in width.” On the 4th of October, 1886, the president and board of trustees of the town, by ordinance, granted to the defendant a right to lay, maintain, and operate a single or double track railroad along and upon said Front Street for the whole length thereof, from a point near Kalorama Street, etc. The plaintiff owned two lots fronting on the north side of said street, one situate in block 19, and one in block 20, the two being separated by a distance of 260 feet. The railroad was constructed along said Front Street prior to September 13, 1888, and on that day plaintiff commenced an action against defendant for damages to his lot situate in block 19, by reason of a cut *419 and fill made in the construction thereof, and on the twenty-sixth day of January, 1889, the amount of plaintiff’s damages were agreed upon and settled between the parties, and paid by defendant to…

I concur in the judgment. Under the circumstances of this case, the lots claimed to have been affected lying near to, if not adjoining, each other, and the road being completed at the time the first action was brought, the settlement of that case was rightly held to be a bar to the second action. But a case might arise where a road being constructed vrouid pass over and affect two tracts of land owned by the same person, the tracts being a long distance apart, and that part of the road affecting one piece of land be constructed long before the part affecting the other piece. In such a case, the construction of the whole road could not with any propriety be treated as but one act, and the land-owner be compelled to delay his action until the whole road is completed, and join his action for damages to both pieces of land, or bring his action for both, when it may be uncertain whether the last part of the road will ever be completed or not. Under such circumstances, separate actions should be allowed, and, in my judgment, the opinion of Mr. Justice Fox is too broad in its language in this respect.