Du Laurans v. The First Division of the St. Paul and Pacific Railroad Co. recover." The court also charged as follows: "What is such reasonable time for the ticket office to be open in advance of the departure of the train is a question of fact for the jury under the instructions of the court." And the court refused to charge, as requested by the defendant, "that if the fare from St. Paul to Minneapolis, as established by the defendant at the time of plaintiff's alleged grievance, was, when paid on the cars, sixty cents, and if the plaintiff was on the train without a ticket, and persistently refused to pay such fare when requested so to do by the conductor, the defendant was not bound to carry him to Minneapolis, but had the right to remove him from the cars, using no more force than was necessary for that purpose,” except with the proviso, "that plaintiff had reasonable opportunity to get a ticket; but did so instruct them with such proviso." The company had a right to make any reasonable regulation as to the payment of fare by passengers upon its road, and in the exercise of its power could make a discrimination between fares paid by passengers in the cars, and those paid at the ticket office by purchasing tickets, and it is immaterial whether the mode of this discrimination is by selling tickets at a stated discount from the regular fare, or, if tickets are not procured, by charging a sum beyond the regular fare. But we think both reason and authority sustain the rule, that, in order to justify the expulsion of a passenger from the train for refusing to pay the difference between the ticket fare and the regular car fare, when a ticket is not purchased, the company must afford passengers reasonable and proper opportunity to avail themselves of the advantage, and to avoid the disadvantage of this discrimination in fares which it publicly offers. The Chicago B. & Q. R. R. Co. v. Parks, 18 Ill. 464; St. Louis A. & C. R. Co. v. Dalby, 19 id. 364; The Jeffersonville R. Co. v. Rogers, 28 Ind. 3; 1 Redfield on Railways (3d ed.), 104. The only case referred to, or which has come to our attention holding a different doctrine, is that of Crocker v. The New London, Willimantic and Palmer Railroad Company, 24 Conn. 249. In that case it is held, among other things, that the regulation making a discrimination in fares was a mere proposal and could be withdrawn by the company at any time before being actually accepted by a passenger, and that the closing of the ticket office for the night before the plaintiff applied for a ticket was a withdrawal of the offer to discriminate in favor of those purchasing tickets. The report of the case shows, that, upor Du Laurans v. The First Division of the St. Paul and Pacific Railroad Co. this point, the members of the court taking part in the decision were equally divided in opinion, two judges dissenting. The case has been considered in several instances by other tribunals, and has failed to command the approval either of courts or commentators. 19 IL 364; 28 Ind. 5; 1 Redfield on Railways, 105; see also The State v Chovin, 7 Iowa, 204. It may be conceded that the offer to discriminate is, in the first instance, a mere proposal, and yet as a common carrier the right of the defendant to change or withdraw the proposition may not be unlimited. However that may be, the mere fact of the ticket office being closed does not create the presumption in law or fact of a withdrawal of the offer (28 Ind. 5); and in the case at bar it is not pretended that there was in fact a withdrawal of the offer, for the evidence shows that the regulations existing at the time of this occurrence had existed for several years previous. If, therefore, the ticket office was not open for such reasonable time previous to the departure of the train as to enable the plaintiff to procure his ticket, the defendant could not demand of him more than the ticket fare, and his expulsion from the train was wrongful. What is a reasonable time for such purpose must depend on circumstances: what would be a reasonable time at a country station might not be suf ficient in a large city; what would be reasonable in either depends on the number of passengers usually entering the train there, and other circumstances. What was a reasonable time in this instance, therefore, was properly submitted to the jury under the instructions of the court. Cochran v. Toher et al., 14 Minn. 391. It was further claimed by the defendant that there was no evidence what was a reasonable time for the office to be kept open, or whether the office was in fact open for such reasonable time. The testimony of Mr. Delano, the superintendent of the road, shows that the general instruction of the company to agents on the road is to have ticket offices open from ten to fifteen minutes before starting of trains; that they have a special ticket agent at St. Paul, and intend to have the office there open that much or more. The plaintiff testifies that he went to the baggage master and had his baggage checked; that afterward, and about fifteen minutes before the train started, he went to the ticket office and found it closed; he then went and took his seat in the train. Mr. Perkins, another passenger, states, that he bought his ticket at the office about five minutes before the train started: that the Du Laurans v. The First Division of the St. Paul and Pacific Railroad Co. office was then open. Whether there was other testimony or not does not appear; and while the testimony before us is rather slight, we think there was sufficient to justify the charge of the court. There was no error in the instructions of the court, nor in its refusal to instruct as requested by the defendant; the exceptions nr.der consideration, therefore, cannot be sustained. The court, at the plaintiff's request, charged the jury that, "in estimating the damages which the plaintiff is entitled to recover, the jury may take into account not only the loss of time, but pain of body, pain of mind, and injury to the feelings of the plaintiff. They may award damages, in their discretion, as a compensation for the ill-treatment to which the plaintiff was subjected in ejecting him from the cars;" to which the defendant excepted. The defendant also requested the court to charge "that the plaintiff in any event can recover only the damages proved, and as he has failed to prove any special damages, but has shown himself at fault and in the wrong in the matter, the defendant has been guilty, at most, of only technical wrong, and the verdict should be for only nominal damages." The court refused so to charge, and the defendant excepted. The rule of damages, as laid down by the court in charging the jury as requested by the plaintiff, embraces only such as are in themselves compensatory damages, and such as are alleged in the complaint, or implied by law, and in this case, we think, was entirely correct, and it follows, the refusal to instruct, as requested by the defendant, was not erroneous. In cases of this kind the jury are the proper judges of the amount of damages to be allowed, and unless there is something in the case showing that the jury in their determination were influenced by passion, prejudice or some improper motive, the court will not interfere. City of St. Paul v. Kuby, 8 Minn. 171; Chamberlain v. Porter, 9 id. 269; Chapman v. Dodd, 10 id. 350. While the damages allowed in this case are large, we cannot say that they indicate any misunderstanding of the rule of compensation as given by the court, or that the jury were influenced by any improper feeling or motive. The order appealed from is affirmed. NOTE. Under chapter 228 of the laws of 1857 of the state of New York, which authorizes the New York Central Railroad Company to demand five cents extra fare from a passenger who fails to purchase a ticket, provided said company keep its offices ope Dawson v. The St. Paul Fire Insurance Company. between certain hours of the day, "at least one hour prior to the departure of each passenger train from such station," it was held, that, where a passenger applied at the office for a ticket but failed to get it in time to enable him to get safely on the cars owing to the temporary absence of the agent, the company could not require the extra fare. Porter v. New York Central Railroad Co., 34 Barb. 353. So where the passenger took the cars at a station where the ticket office was closed, it being later than the compan were required by statute to keep their office opened, it was held, that, if the company demanded and received the extra fare, they would be liable to the penalty prescribed for charging beyond a certain rate of fare. Chase v. New York Central Railroad Co., 28 N. Y. 523; Nellis v. New York Central Railroad Co., 30 id. 505. - REP. DAWSON V. THE ST. PAUL FIRE INSURANCE COMPANY, appellants. (15 Minn. 136.) Right of way over a strip of land described in a deed as a street. J., owning lands, on which was a strip called a street, but which was not laid out or dedicated as a public highway, conveyed the same to S., by a conveyance in which the said strip was mentioned as a boundary and described as St. Charles street." Subsequently S. conveyed a portion of such lands to the plaintiff, "with all the privileges and appurtenances thereunto belonging," referring to the so-called street, in the deed. The land so sold did not but or front upon such street, nor was there a right of way by necessity over the land intermediate. Held, that the plaintiff did not acquire any right of way over the so-called street. Where it does not appear that a person will sustain any special or peculiar damage in consequence of the obstruction of a public highway, an injunction to restrain such obstruction will not be granted at his suit. THE facts are set forth in the opinion. Brisbin & Palmer and H. J. Korn, for appellants. George L. Otis and I. V. D. Heard, for respondents. BERRY, J. This is an appeal from an order overruling a demurrer to the complaint. The complaint alleges that the defendants have entered into possession of a certain strip of land situate in St. Paul, called St. Charles street; have excavated and are now engaged in excavating the soil thereof, and are erecting and threatening to continue to erect a stone building thereupon, which will occupy the northerly one hundred feet of said strip, and prevent travel thereon. The prayer of the complaint is, that the defendants may be adjudged Dawson v. The St. Paul Fire Insurance Company. to restore said strip of land to the condition in which it was before they intermeddled therewith, and that they may be enjoined from proceeding with the excavation and with the erection of the proposed building. This relief is asked upon two grounds. First, because, as is alleged in the complaint, St. Charles street is a public street and highway, which the plaintiff, as a citizen of St. Paul, and a property holder therein, is entitled to use, pass over and have kept open as a street. No damage special and peculiar to the plaintiff is alleged to have accrued from the acts of the defendants, nor to be likely to accrue from the future prosecution or the completion of the work complained of. Neither does it appear that the plaintiff is the owner of, or in the occupation of, any premises fronting upon and adjacent to said so-called St. Charles street, from which fact, according to some of the cases, speciat and peculiar damages (though nominal in amount) might be inferred. Haynes v. Thomas, 7 Ind 38; Tate v. Ohio and Mississippi R. R. Co., id. 483; Carlin v. Paui, 11 Mo. 32; Bingham v. Doane, 9 Ohio, 165; Schurmeier v. St. P. and P. R. R. Co., 10 Minn. 105. Upon this state of facts the plaintiff does not show himself entitled to the relief prayed for, so far as his prayer is based upon the theory that St. Charles street is a public street or highway. Where no peculiar and special damage is sustained by a private person in consequence of the obstruction of a public highway, which obstruction is a public nuisance, the remedy is only by indictment, or perhaps by suit in the name of the state, or of some one authorized to act for and vindicate the rights of the public. Stetson v. Faron, 19 Pick. 154; President and Fellows of Harvard College v. Stearns, 15 Gray, 6: Lansing v. Smith, 8 Cow. 146; Fort Plain Bridge Co. 7. Smith, 30 N. Y. 62; Carpenter v. Mann. 17 Wis. 155; Washburne on Easements, 569. Nor in such cases will an injunction be granted at the suit of a private person. Id. 577: Brainard v. Conn. R. R. Co., 7 Cush. 506; Hartshorn v. South Reading. 3 Allen, 501. The other ground upon which the relief prayed for in the complaint is asked is, that plaintiff is entitled to a private way over the so-called St. Charles street. The facts upon which this claim of a private way is based, as set up in the complaint, are as follows: On the 13th day of January, 1849, Louis Roberts, being the owner of certain lots of land, conveyed a portion thereof to Henry Jackson. The description and situation of the portion so conveyed wih appar from the following diagram, which will be sufficiently accu |