Connors v. Yazoo & M.V.R. Co.

• Decision Date: 24 April 1905
• Citation: 38 So. 320,86 Miss. 356
• Parties: JOHANNA CONNERS ET AL. v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Court: Mississippi Supreme Court

38 So. 320

86 Miss. 356

JOHANNA CONNERS ET AL. v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

Supreme Court of Mississippi

April 24, 1905

FROM the circuit court of Warren county, HON. GEORGE ANDERSON Judge.

Mrs Conners and others, the appellants, were plaintiffs, and the railroad company, the appellee, was defendant in the court below. From a judgment in defendant's favor the plaintiffs appealed to the supreme court.

One Mrs. Rigby owned some lots in Vicksurg fronting on Levee street, and on January 9, 1890, executed the following deed to the Louisville, New Orleans & Texas Railway Company, under which company defendant now claims: "In consideration of $ 1,500, I release, remise, and quitclaim to the Louisville New Orleans & Texas Railway Company, the right of way for the purpose of operating its railroad, to the extent of not more than two tracks, along Levee street in front of the property owned by me [here describing the property], the purpose being to give such right of way in front of all property I own fronting on said street; and in consideration aforesaid, I release, and receipt for in full, all damages heretofore done, or which may hereafter be done, in the operation of said railroad over and along said street. This release however, not to extend to nor permit the unlawful operation of said railroad over said street in the running of cars, or otherwise." Plaintiffs claim the lots under Mrs. Rigby. The appellee had tilled in the street in front of this property, and raised it several feet above the established grade, so as to obstruct ingress to and egress from plaintiffs' lots.

Reversed and remanded.

Brunini & Hirsh, for appellants.

In our judgment a single question is presented to this court for its decision, and it involves the construction of the deed from Rigby to the railroad. Did that instrument grant the railroad the right to change the grade or surface of Levee street as it then stood in front of appellants' property? The lower court held the affirmative of the proposition, and, we contend, erroneously.

At the date of the execution of the deed to the railroad by Rigby the railroad had already tracks upon Levee street in front of appellants' property, and was operating a line of railway upon the same.

Mrs. Rigby was entitled at that time, under the decision in Theobold v. Railroad, 66 Miss. 279, to damages from the railroad company for constructing and operating a steam railroad on Levee street in front of her property. It is evident, therefore, that the parties to the instrument had in mind, when the same was executed, the damage already sustained by subjecting the street to this additional servitude, and the damage which would accrue from the operation, not the construction or operation of the railroad. The only future damage which was before them was that which would be occasioned by the operation of the railroad. Undoubtedly the deed was executed with reference to the grade or surface of the street, as it then stood. This is obvious to our minds from the following facts: (a) The tracks were already upon the street; (b) the right to change or alter the grade or surface of the street was not granted in express words in the deed; (c) the right of way granted was not intended to destroy the use of the street for street purposes or to abutting property.

The instrument is clear and unambiguous. It grants to the railroad "the right of way for the purpose of operating its railroad to the extent of not more than two tracks along Levee street, . . . the purpose being to give such right of way in front of all property I own fronting on said street, . . . and I release, and receipt for in full, all damages heretofore done, or which may hereafter be done, in the operation of said railroad over and along said street. This release, however, does not extend to nor permit the unlawful operation of said railroad in the running of cars, or otherwise."

We refer the court to Elliott on Roads and Streets (2d ed.), sec. 734, which, while referring to street railways, which are not held to be additional servitudes, announces a healthful and forceful principle in regard to railroads interfering with the conditions of streets for the purpose of accommodating themselves, and not as a part of the system for the improvement of the streets.

Mayes & Longstreet, for appellee.

If there had been no Rigby deed, the action of the court below would still have been correct.

The charter of the city of Vicksburg will be found in Acts 1884 p. 429, and art. 15 gives to the...