Alabama & Vicksburg Railway Co. v. King

• Decision Date: 21 December 1908
• Docket Number: 13,579
• Citation: 93 Miss. 379,47 So. 857
• Parties: ALAMABA & VICKSBURG RAILWAY COMPANY v. KATE E. KING
• Court: Mississippi Supreme Court

47 So. 857

93 Miss. 379

ALAMABA & VICKSBURG RAILWAY COMPANY v. KATE E. KING

No. 13,579

Supreme Court of Mississippi

December 21, 1908

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

MRS King, appellee, was plaintiff in the court below; the railway company, appellant, was defendant there. From a judgement in plaintiff's favor the defendant appealed to the supreme court.

The suit was an action for damages alleged to have been suffered by the plaintiff, the owner of dwelling houses, and land in the city of Vicksburg located near the tracks of the defendant railway company. Plaintiff charged in her declaration that by reason of the jarring and shaking of her houses, caused by the rapid running of the trains of the defendant, the plastering in her dwellings had fallen, and the chimneys and foundations thereof had been injured; that on account of soot and smoke from the engines of defendant falling upon her houses, she has been damaged because of dirt and suffocation and the water in her cisterns has been thereby polluted; and because of the unusual noises made by passing trains, switching of engines, whistling, ringing of bells, and violent impact of coupling cars, her property has been diminished in value and depreciated as residence property.

The pleas filed by the defendant set up in substance that the defendant acquired the right of way and was operating its trains over the land adjoining plaintiff's property before the adoption of the constitution of 1890, prior to which no liability existed where private property was merely damaged, and not taken for public use, and that no part of plaintiff's property had been taken. Plaintiff demurred to these pleas, and the demurrer was sustained. The case went to the jury, who awarded plaintiff the sum of $ 350 damages.

For a companion case to this one see King v. Vicksburg, etc Co., 88 Miss. 456; 42 So. 204; 6 L. R. A. (N. S.) 1036; 117 Am. St,. Rep. 749.

Judgment affirmed.

Smith Hirsh & Landan and McWillie & Thompson, for appellant.

The defendant filed two special pleas under which it was proposed to make a wholly different case from that of King v Vicksburg Railway & Light Co., 88 Miss., a street railway company case. These pleas set up in substance that the appellant acquired its right of way and was operating its trains over the land adjoining plaintiff's property long prior to the adoption in 1890 of the present state constitution, prior to which time no liability existed where private property was merely damaged and not taken for public use, and that no part of plaintiff's property had been taken. The plaintiff demurred to these pleas and her demurrers were sustained. We will discuss the question arising on the demurrers when we come to the consideration of the action of the court below on instructions and in excluding evidence offered by the defendant, for the same question there arises and in a manner more favorable to the appellant, since it may be claimed that the pleas did not go to the whole of plaintiff's declaration which is predicated in one count partly of alleged unlawful acts of the defendant in the operation of its trains.

When the plaintiff rested she admitted that the defendant was the successor of the Commercial & Railroad Bank which had owned the right, of way along the front of plaintiff's property, not touching the same, since about 1840 and operated its trains along said property until it was succeeded by the Southern Railroad Company, and the Southern did likewise until it was succeeded by the Vicksburg & Meridian Railroad Company, and the last mentioned road did likewise until it was succeeded by the defendant, the Alabama & Vicksburg Railway Company, some time between 1880 and 1890, that commencing in 1897 the business of the defendant company increased and from time to time it became necessary for it to lay additional tracks on its right of way and to put on additional trains to move its increased business, and that it had in accordance with the requirements of the public purchased new cars and engines of modern and improved standard which were operated in the usual way railroads operate their engines and trains, along in front of the property in controversy.

On the objection of the plaintiff these facts were excluded from the consideration of the jury and the defendant excepted. The case before the jury was not, however, changed in any substantial manner by this ruling, for the plaintiff's witnesses had shown that the railroad had been operating over the same right of way since 1870, that about the time mentioned the additional side tracks had been laid down and while heavier engines and cars had come into use and a greater number of trains were operated there was nothing to indicate that the engines and cars were out of the ordinary or that any more trains were run than the increased traffic of the road required.

The defendant moved to exclude all of plaintiff's evidence and the motion was overruled. Defendant then asked for a peremptory charge in its favor which being refused defendant excepted and made such refusal of the court one of the grounds of its motion for new trial.

The charter of the Commercial and Railroad Bank of Vicksburg under which the land occupied by the tracks in question was acquired authorized that corporation to enter upon land, lay out the same, and contract with the owner or proceed to have the same condemned, so as to acquire the right to use, occupy and possess the land so far as may be necessary or useful to the purposes of the railroad. Laws, 1831, p. 127; Laws 1833, p. 124; Laws 1836, pp. 119, 120. The wide scope of this franchise was considered by this court in the case of Ewing v. Alabama & Vicksburg R. Co., 68 Miss. 551, and while the question in that case was whether the power to condemn was exhausted by one proceeding relating to the right of way proper so as to preclude a like proceeding afterwards for the condemnation of land required for a necessary coal chute, the court comments at length on the purpose of the act of incorporation which looked to increased facilities with the future development of the country and the growth of traffic.

The plaintiff in no manner questioned the original taking of the land whether by purchase or condemnation nor that it was also properly appropriated to switching purposes over the necessary side-tracks subsequently laid down. Indeed, she had no status that would warrant such an objection, and her whole claim is that the operation of the railroad over these tracks, main and side-tracks, on land legally taken for these and other railroad purposes long before she acquired the contiguous land and erected her buildings, made defendant liable for the resulting damage to her property.

The taking was before the adoption of the constitution of 1890 at which time compensation had to be made for the taking only of private property for public use and the mere damage to private property gave no right to compensation, and we insist that when the constitution was adopted the right to use the land in question for railroad purposes free from any claim for damage based upon such use, was fixed and vested under the act of 1836 and is within the protection of the fourteenth amendment to the federal constitution as property of which the defendant could not be deprived without due process of law. The railway company having taken the land near plaintiff's property was under no liability to any one save the owner, and to him only on account of the taking. In view of the long period the land has been held by the railway company and the absence of any complaint, the owner presumably was settled with and the company discharged from all further claim on account of the use of the land for railroad purposes. It had the right to lay on the land not only its main line but all side-tracks that might become necessary and to operate over them the number of trains then in use or such additional trains as might become necessary, and engines and ears of such weight as were then in use or of such additional weight as improved methods and increased traffic might demand, without incurring any liability to neighboring owners whose land was not taken. Railway companies charged with a duty to the public to transport such legitimate subjects of commerce as may be tendered to them for carriage must carry many as well as few and heavy as well as light commodities and must provide facilities adequate to meet the demands of the public. It is as absurd to say that they incur liability by using heavier engines and cars than at first as it would be to say that they do so by carrying heavier commodities. Louisville, etc. Co. v. Lellyett, 1 L. R. A. (N. S.) 89, 90, 91. Franchises and casements are property and this right to so use its right of way was property that could not be divested by subsequent state action whether legislative or constitutional. Louisville, etc., Ferry Co. v. Kentucky, 188 U.S. 395. The court will observe that in the case of King v. Vicksburg Railway & Light Company, supra, the decisions of this court on the law as it stood before the adoption of the present constitution are shown to have denied any compensation to property owners whose land was not actually taken, and the case turned upon the change extending the right of compensation to those whose property was merely damaged made by the present constitution which was controlling in the absence of any right vested prior to its adoption. See 88 Miss. pages 486, 487.

This right of the railway company to use its right of way as it is using it being full and complete under its charter after the appropriation of the property to railroad purposes, there is here no case of a new and additional servitude such as engaged the...