ANDERS
J.
The
appellants sued the respondent to recover damages alleged to
have been occasioned to their property by the building and
operating of a railroad along Seventh street, in the city of
Olympia. The complaint alleges: "(3) That on said date
plaintiffs became the owners in fee, and obtained possession
and are now such owners, and have possession, and at all
times hereinafter mentioned were such owners, and had
possession, of that certain tract of land situate at the
northeast corner of Franklin street and Seventh street, in
the city of Olympia, county of Thurston, and state of
Washington, known, designated, and numbered on the original
plat of the town (now said city) of Olympia as lots numbered
respectively, eight (8) and seven, (7,) in block numbered
thirty-six, (36,) which plat is, and for many years has been,
on file in the auditor's office of said county; said lots
being the southwest quarter of said block. (4) That each of
said lots fronts, and is sixty (60) feet wide, on said
Seventh street, and extends northward, at right angles with
said street, one hundred and twenty (120) feet; the west line
of said lot numbered eight (8) being on Franklin street
aforesaid. (5) That plaintiffs are the owners in fee of so
much of the land on which Seventh street aforesaid is located
as lies on the front of, and adjacent to, said lots, and
extends to the middle line of said street, and they are the
owners in fee of so much of the land on which said Franklin
street is located as lies on the west of, and adjacent to,
lot numbered eight, (8,) and extends to the middle line of
said Franklin street. Each of said streets is sixty (60) feet
wide. (6) Plaintiffs say that heretofore, to wit, on the
_____ day of May, 1891, and on divers and sundry
days thereafter, the defendant, the Tacoma, Olympia &
Gray's Harbor Railroad Company, aforesaid, its officers,
agents, servants, and employes, without the consent of these
plaintiffs, or of either of them, and wrongfully and
unlawfully, entered upon the land of plaintiffs on Seventh
street, described in the fifth paragraph of this complaint,
and without the consent of plaintiffs, or either of them, and
wrongfully and unlawfully, did dig up and carry away the soil
thereof, and did cut a deep tunnel along and across said
land, to the full extent of the width and length of said
Seventh street, in front of said lots, and greatly to
plaintiffs' damage. (7) That plaintiffs' said land,
described in paragraphs 3 and 4 herein, is improved property,
and has thereon a valuable dwelling house, in which
plaintiffs reside, and have for several years resided, and
other valuable buildings, fruit trees, and other
improvements. (8) That the said defendant, its officers,
agents, servants, and employes, have constructed a railway
along said tunnel, and have covered said tunnel with timbers
and plank for the purpose of making a roadway over said
tunnel and along said Seventh street, for public travel and
passage, and have wrongfully and unlawfully changed and
raised the grade of said street five (5) feet above the grade
that had been established theretofore on said street by the
city of Olympia, and that existed at the time said tunnel was
cut and made as aforesaid. (9) That said defendant, its
officers, agents, servants, and employes, have wrongfully and
unlawfully changed and raised the grade of Franklin street,
making the approach on said street to said covered way five
(5) feet at the point said street intersects with said
covered way, and have wrongfully and unlawfully extended said
altered grade along said Franklin street, in front of said
plaintiffs' said land, buildings, and improvements. (10)
That said defendant, its officers, agents, servants, and
employes, by doing the acts and things alleged in paragraphs
8 and 9 herein, have put and left plaintiffs' aforesaid
lots, buildings, and improvements at a depth of five (5) feet
below the top of said covered way on Seventh
street, and at the intersection of Seventh and Franklin
streets, and along Franklin street, have destroyed ingress
and egress to and from said property on Seventh street, and
for one-half the length thereof on Franklin street, and have
thereby greatly impaired and lessened the value of said lots,
buildings, and improvements. (11) That said defendant is
actively engaged, through its officers, agents, employes, and
servants, in operating its railroad, and in running passenger
and freight trains, drawn by steam engines, along and through
said tunnel daily, and that in so doing the smoke and sparks
from said engines are thrown off in said tunnel in great
quantities, and the rumble and noise produced by said trains
are very great, and that plaintiffs' residence and
buildings aforesaid are daily endangered and rendered unsafe
and uncomfortable thereby, and the value thereof materially
and greatly impaired and lessened. (12) That said defendant,
its officers, agents, servants, and employes, by reason of
the acts and things alleged herein, have damaged plaintiffs
in the sum of five thousand ($5,000) dollars." The
respondent filed an answer admitting the construction and
operating of the railroad as set forth in the complaint, but
denying any knowledge or information sufficient to form a
belief as to the ownership of the property described in the
complaint; denying that plaintiffs are the owners of the fee
to the middle line of the streets adjoining said premises;
that defendant raised the grade of said streets to any extent
whatever, or that it destroyed ingress or egress to and from
said property on said streets, or that it thereby, or at all,
has lessened or impaired the value of said lots, buildings,
or improvements, or either of them; that, in running its
trains along and through said tunnel, the smoke and sparks
from said engines are thrown off from said tunnel, or that
the rumble and noise produced by said trains are very great,
or great at all, or that plaintiffs' residence or
buildings are injured or rendered
unsafe or uncomfortable thereby, or that any of the acts
complained of were wrongfully or unlawfully done,
or that plaintiffs have been damaged by any acts of defendant
in any sum whatever. And, as a further answer, defendant
alleged: "(1) That at all the times herein mentioned it
was a railroad corporation, duly incorporated under and by
virtue of the laws of the state of Washington, and that the
uses and purposes of said corporation, for which it was so
incorporated, and in which it is, and at all the times in
said complaint mentioned was, engaged, constitute and are a
public use. (2) That Seventh and Franklin streets, of the
city of Olympia, are, and at all the times in said complaint
mentioned were, and for upwards of twenty years immediately
preceding any of the times mentioned in said complaint had
been, public streets and highways of said city, and at a time
many years prior to the plaintiffs', or either of them,
acquiring any right or interest in and to the lots, or either
of them, mentioned in said complaint, had been designated and
laid down upon the original plat of said city, and donated
and granted to the public forever upon said plat, designated
and laid off as such, and which said plat had theretofore, to
wit, at a time more than twenty years prior to any of the
times mentioned in said complaint, been recorded in the
office of the auditor of said Thurston county, in which said
city of Olympia is and was situated. (3) That, at all the
times mentioned in said complaint and herein, said city of
Olympia was duly incorporated as a municipal corporation
under and by virtue of the laws of the then Territory of
Washington. (4) That on the 10th day of June, 1890, pursuant
to the powers and authority by law invested in it, and under
and by virtue of the express power and authority conferred by
an act of the legislature of the Territory of Washington
passed and approved on the 28th day of November, 1883,
entitled, 'An act to incorporate the city of
Olympia,' the mayor and city council of said city of
Olympia did, by an ordinance, No. 399, of said city, entitled
'An ordinance granting a right of way to the Tacoma,
Olympia & Gray's Harbor Railroad Co. over certain
streets, and alleys, and authority to construct a
railroad and lay out depot grounds within the city of
Olympia,' authorize and grant the defendant the right and
privilege of constructing, equipping, maintaining, and
operating its line of railway over, along, through, across,
and under certain streets and alleys of the city of Olympia,
and, among others, Seventh and Franklin streets aforesaid,
which said grant, so conferred, was accepted by the company.
(5) That under and by virtue of said ordinance, so passed,
this defendant, through its proper officers and agents, did
construct its...
