Chi., R. I. & P. Ry. Co. v. Shepherd

• Decision Date: 06 March 1894
• Court: Nebraska Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. ET AL. v. SHEPHERD.

39 Neb. 523

58 N.W. 189

CHICAGO, R. I. & P. RY. CO. ET AL.

v.SHEPHERD.

Supreme Court of Nebraska.

March 6, 1894.

Syllabus by the Court.

1. A grantee of land which is incumbered by a right of way or other easement takes it burdened with such incumbrance, and will not, as a rule, be entitled to recover damage therefor.

2. In order to maintain an action for trespass to land, it must appear either that the plaintiff was the owner of the premises, or in possession thereof, at the time of the commission of the acts charged.

3. The office of a motion for a more specific statement is not to cure fatal defects in pleadings, but to secure definite statements in pleadings which are sufficient in substance, but not in form.

4. The failure to allege a material fact raises a presumption that it does not exist.

Error to district court, Pawnee county; Appelget, Judge.

Action by J. N. Shepherd against the Chicago, Rock Island & Pacific Railway Company and another to recover damages resulting from a construction of a railroad and stock yards adjacent to plaintiff's residence. There was judgment for plaintiff, and defendant the Chicago, Rock Island & Pacific Railway Company brings error. Reversed.M. A. Low and W. F. Evans, for plaintiff in error.

D. D. Davis and Daniel F. Osgood, for defendant in error.

POST, J.

This was an action in the district court of Pawnee county against the Chicago, Kansas & Nebraska Railway Company to recover for damage to lots 10, 11, and 12 in block 8 in Hazel's addition to Pawnee City. Afterwards, an amended petition was filed against said defendant and the plaintiff in error, the Chicago, Rock Island & Pacific Railway Company. Plaintiff, in his amended petition, states that during the year 1886 the Chicago, Kansas & Nebraska Railway Company built and constructed a railroad in Pawnee City, and in the building, operation, and construction of said railroad a large portion of Third street is occupied and used; that blocks 10, 11, and 12 in said city are owned by the said company, and that said railroad is constructed upon the same; that said railway company has built, constructed, and operated its railroad and stock yards upon, over, and across said block 11; that Walnut street, in said city, extends north and south along the east side of blocks 8 and 11, and, in the building and construction of its railroad, said company threw up and built a large embankment, entirely obstructing said street, at a point about 200 feet south of the southeast corner of lot 12 in said block. It is further alleged that “the plaintiff is the owner in fee simple of lots number 10, 11, and 12 in said block 8, his dwelling house being situated on the south end of lot 12 in said block, which he occupies for his residence,” and that, ever since the construction of said railroad and stock yards, said yards have been used almost continuously, day and night, and have been occupied by large numbers of cattle and hogs, and have been permitted to become noisome, unclean, and unhealthy, and have given out a strong and unhealthy stench, contaminating the air, and rendering his said residence almost uninhabitable by reason thereof, and that “by reason of the bellowing of the cattle, and the noise of the hogs inclosed in said yards, during the night, the rest of this plaintiff and his family is disturbed, as is the peace and comfort of his home by the same noises during the day, as well as by the shouts and noise of the loading and unloading of said stock into defendant's cars, and that by reason of the smoke and soot from the defendant's engines, the noise of the bell and whistle, and of the passing of defendant's cars on said railroad, at all hours of the day and night, said premises have been made unfit for residence purposes. Also, by reason of the closing of said Walnut street as aforesaid, traffic has been entirely cut off from said street, and diverted therefrom. By reason of which the plaintiff has suffered pecuniary loss, and his said property has been diminished in value, and he has been otherwise injured, to his great damage, in the sum of $500.” It is further alleged that the Chicago, Rock Island & Pacific Railway Company claims to have purchased and become the owner of said railroad, and claims to be operating the same. The Chicago, Kansas & Nebraska Railway Company was not notified of said action, and did not enter its appearance therein. The answer of the Chicago, Rock Island & Pacific Railway Company, in addition to a general denial, contains an allegation that the railroad referred to in the amended petition was constructed by the Chicago, Kansas & Nebraska Railroad Company, a corporation of the state of Nebraska, and that...