Alabama & Vicksburg Ry. Co. v. Bloom

• Decision Date: 08 January 1894
• Citation: 15 So. 72,71 Miss. 247
• Parties: ALABAMA & VICKSBURG RAILWAY CO. v. ELIAS BLOOM
• Court: Mississippi Supreme Court

15 So. 72

71 Miss. 247

ALABAMA & VICKSBURG RAILWAY CO. v. ELIAS BLOOM

Supreme Court of Mississippi

January 8, 1894

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

The allegations of the declaration are stated in the opinion and, since the court holds that they are sustained by the evidence, it is not necessary to set out the testimony. It maybe proper, however, to state that plaintiff had only a lifeestate in the residence in question.

The court, at the request of plaintiff, instructed as follows:

"1. If the jury believe from the evidence that the construction and maintenance of the switch by defendant, and the uses to which it is devoted by defendant, rendered the ordinary use and occupation of the property physically uncomfortable to plaintiff, then plaintiff is entitled to recover such damages, if any, as the jury may consider will compensate him for the discomfort and inconvenience, if any, as he suffered in the enjoyment of his property by such construction maintenance, use and occupation.

"2. The ordinance of the city of Jackson cannot affect plaintiff's right to recover damages for the injuries sustained, if any, to his enjoyment of his property."

The following instructions asked by the defendant were refused:

"3. If the jury believe from the evidence that defendant company constructed its railroad track up Commerce street under an ordinance of the city of Jackson, the real owner of the street, and, under like sanction and authority, operated its trains thereon, without any loss or inconvenience to the plaintiff, except such as naturally and necessarily arises from the proper management and conduct of its trains, they will find for defendant.

"4. The standing of cars on the said track or switch, unless prohibited by city authorities, even if they stood in front of the plaintiff's premises, does not constitute any ground of action in his favor against the defendant company unless they are left so standing for an unreasonable time or beyond the time necessary for the proper management of defendant's trains and the delivery and receipt of freight."

The jury found for the plaintiff, and fixed his damages at one thousand dollars. From a judgment in accordance with this verdict, after motion for new trial overruled, the defendant appeals.

Affirmed.

W. L. Nugent, for appellant,

Filed a lengthy brief with numerous citations of authorities, seeking modification of the doctrine of this court announced in Theobold v. Railway Co., 66 Miss. 279, and Stowers v. Telegraph Co., 68 Ib., 559, and contending especially that the doctrine of those cases should not apply where the fee of the street is in the public, free from any trust or duty, but subject to be disposed of for any purpose that the public may deem proper. Touching this contention, counsel cites the following cases' 80 Am. Dec., 792; 4 Wis. 821; 48 Ind. 188; 63 Pa. 222; 22 Conn. 85; 5 Eng. Ry. & Canal Cas., 552; 59 Am. R., 303; 27 N.Y. 188; 12 Iowa 246; 24 Ib., 455; 55 Ib., 107; 25 Ill. 516; 38 Mich. 62; 47 Ib., 393; 68 Ib., 392; 26 Albany L. J., 373; 2 Dillon on Mun. Cor., § 712.

An abutting owner who does not own the fee of the street cannot recover for any injury to his freehold resulting from the presence of a steam railway in the street, but only for damages resulting from such misconduct of the railroad company in its management as amounts to nuisance--as, leaving cars standing an unreasonable time, unnecessary noises and dangerous speed. 31 Am. R., 306; 43 Ib., 661; 22 Am. & Eng. R. R. Cas., 150 ; 90 N.Y. 122.

Appellant took nothing from appellee, who had no property right in the street. At most, it merely impaired the value of his right to use the street. The extent of the liability could not be appreciable. 20 Am. & Eng. R. R. Cas., 125.

The measure of damages adopted in this case is improper, and it was error to allow plaintiff damages for the discomfort and inconvenience which he may have suffered. The rule for measuring the damages has not been definitely fixed in this state. The usual question is as to what extent his egress and ingress, access to and use of the street, were impaired; or else the question is as to the diminished value of the lot by reason of the new servitude. Clearly, on the latter basis, appellee is without right, since he has only a lifeestate in the lot. If no land of plaintiff is taken or touched in the construction or operation of the public work, there can be no claim for damages for any consequential injuries. 3 Sutherland on Dam., 431. See also 20 Am. & Eng. R. R. Cas., 125. Many cases in which the injured party's rights were protected, proceed under the constitution, which provides that private property shall not be taken "or damaged" for public or private use without just compensation. I submit that, under the authorities, the instructions asked by defendant should have been given, and those asked by the plaintiff should have been refused.

Calhoon & Green, for appellee.

1. The evidence discloses a flagrant violation by appellant of the rights of appellee. Notwithstanding protest of the latter, the railroad company commenced and completed and has maintained the nuisance complained of.

2. We rely for affirmance on the following authorities: Theobold v. Railway Co., 66 Miss. 279; Stowers v. Telegraph Co., 68 Ib., 559; 2 Waterman on Cor., 445; 3 Sutherland on Dam., 397, 398; 108 U.S. 334. It will be noted that the laying of the track against defendant's protest was after the adoption of the constitution of 1890, § 17 of which provides that private property shall not be taken or damaged for public use without compensation.

Argued orally by W. L. Nugent, for appellant, and S. S. Calhoon, for appellee.

OPINION

WOODS, J.

This was an action instituted by Elias Bloom against the Alabama and Vicksburg Railway Company for damages resulting from the construction of a track along and upon the street, in the city of' Jackson, on which his residence was situated and where he had...