G., C. & Santa Fe R. R. Co. v. Eddins

• Decision Date: 29 January 1884
• Docket Number: Case No. 1599.
• Citation: 60 Tex. 656
• Court: Texas Supreme Court
• Parties: THE G., C. & SANTA FE R. R. Co. v. M. S. EDDINS.

60 Tex. 656

THE G., C. & SANTA FE R. R. Co.

v.M. S. EDDINS.

Case No. 1599.

Supreme Court of Texas.

Jan. 29, 1884.

APPEAL from Washington. Tried below before the Hon. I. B. McFarland.

M. S. Eddins brought this suit to recover damages done to her homestead lot, situated in the city of Brenham, by reason of the construction of defendant's railway along a street in front of the lot.

Defendant alleged the building of the road in a careful and skilful manner, under authority conferred by its charter and by an ordinance of the city of Brenham; that the fee of the street was not in plaintiff, and that it had become the property of defendant by conveyance from A. H. Rippetoe, the original proprietor, who laid off the addition to the town. Defendant also alleged the purchase of twenty feet of ground along the street and its addition to the width thereof.

It denied the exclusive appropriation of the street, and alleged that it was still left open and free to the use of plaintiff and the public.

Judgment for plaintiff for $800.

The facts are clearly indicated or stated in the opinion. The main charge of the court was as follows:

1. “This is an action brought by plaintiff to recover damages alleged to have been done to plaintiff's property, in its value, use and occupation, by the building of defendant's road along West street, just in front of plaintiff's property, and across Academy street, near plaintiff's premises, situated in the town of Brenham.

2. The defendant pleads: 1st. A general denial. 2d. That defendant had purchased the fee in the street known as West street from A. H. Rippetoe and others. 3d. That defendant had obtained the right of way along West street from the town council of the city of Brenham, and that said West street crosses Academy street.

3. If the jury believe from the evidence that West street had been laid out and dedicated to public use before plaintiff purchased her lot, and that said lot abuts on said West street, and that said lot was sold her with reference to the use of said street, then said Rippetoe and others could not sell said street, and the railroad company took nothing by such conveyance.

4. The town council of the city of Brenham had the authority to grant the right of way to said railroad company along said West street; but the company were bound to exercise that right of way in such manner as not to injure the property abutting on said street.

5. The question for the jury to determine is, has the plaintiff's property been permanently damaged by the building and use of the defendant's road.

6. The burden of proof is on the plaintiff, and she must prove affirmatively, to the satisfaction of the jury, that her property has been permanently damaged by the building and use of said road, and the amount of such damage.

7. If you believe from the evidence that the plaintiff's property has been permanently damaged by the building and use of the defendant's railroad, you will find for the plaintiffs and assess the damages as you may feel warranted by the proof in the case, not to exceed the amount claimed in the petition.

8. If you are not satisfied from the evidence that the plaintiff has suffered damage to the property by the building and use of said railroad you will find for the defendant.

+-----------------------------------------+
                ¦(Signed)¦I. B. MCFARLAND,                ¦
                +--------+--------------------------------¦
                ¦        ¦Judge 32nd Jud. Dist. of Texas.”¦
                +-----------------------------------------+
                

Hume & Shepard, for appellant, on the refusal of the court to give the second instruction, cited: Rev. Civil Stat., arts. 4170-4173; H. & T. C. R'y Co. v. Odum, 53 Tex., 343; Victoria v. Phillips, 55 Tex. (4 Tex. L. J., 534); Rio Grande R. Co. v. Brownsville, 45 Tex., 88;Transportation Co. v. Chicago, 99 U. S., 635;Barnes v. Keokuk, 94 U. S., 341; Railroad Co. v. Richmond, Id., 529; Shearman & R. on Negl., §§ 370, note, 371; 2 Dillon Munic. Corp., §§ 555-6; Id., §§ 576-7; Cooley Const. Lim., 542 to 555 and notes; 1 Thompson on Neg., p. 358, § 23; Field on Damages, §§ 43, 44; Cooley on Torts, 615 et seq.; Addison on Torts, 1040; Weeks' Damnum Absque Injuria, §§ 4 and 8; Pierce on Railways, pp. 223-241; Sedgw. Const. and Stat. Law, 454 et seq. and notes; Sedgw. Meas. Dam., side p. 566; Grand Rapids R'y Co. v. Heisel, 38 Mich., 62 (31 Am., 306); Killinger v. Forty-second St. R'y Co., 50 N. Y., 206;People v. Kerr, 27 N. Y., 188;Drake v. Railroad Co., 7 Barb., 508;Williams v. N. Y. C. R. R., 16 N. Y., 97;Hatch v. Vermont C. R'y Co., 25 Vt., 49;Stone v. Railroad Co., 68 Ill., 394;Chicago Railway Co. v. McGinnis, 79 Ill., 269;Stetson v. Railroad Co., 75 Ill., 74;Smith v. Boston, 7 Cush., 254;Walker v. Railroad Co., 103 Mass., 10;Presbrey v. Railway Co., Id., 1;Attorney Gen. v. Railroad Co., 125 Mass., 515; Imelay v. Railroad Co., 26 Conn., 249;Fellows v. New Haven, 44 Conn., 240; S. C., 26 American Rep., 447; Elliott v. Railroad Co., 32 Conn., 579;Radcliff v. Mayor, etc., Brooklyn, 4 N. Y., 195;Cadle v. Railroad Co., 44 Iowa, 11;Ross v. Clinton, 46 Iowa, 606 (26 Am. Rep., 169);Hendessbote v. Ottumwa, Id., 658 (Id., 182); Smith v. Alexandria, 33 Gratt., 208 (26 Am. Rep., 788); Rex v. London Dock Co., 5 Adolph. & E., 163; 31 Eng. Com. Law Rep., 566; Hammersmith v. Brand, L. R., 4 H. L., 178; Rickett v. Metropolitan R'y Co., L. R., 2 H. L., 175; Glasgow Railroad Co. v. Hunter, L. R., 2 H. L., 78; Penny v. Railroad Co., 7 E. & B., 660; S. C., 26 L. J. (C. B.), 225; Caledonia Railroad Co. v. Ogilvy, 2 McQ., 229; Rex v. Bristol Dock Co., 12 East, 429; Duke of Buccleugh v. Metropolitan Board of Public Works, L. R., 5 H. L., 418.

Offa L. Eddins, for appellee, on the refusal to give the sixth instruction asked by appellee, cited: Mills on Eminent Domain, § 163; Cooley on Const. Lim., note 1 [*566]; Somerville & Eaton R. R. Co. ads. Doughty, 22 N. J., 495; Redf. on R'y, subdivision 11 of § 82 [pp. *343-4]; 20 Am. Rep., 220 (55 N. H., 413);Elizabeth, L. & B. S. R. R. Co. v. Combs, 19 Am. Rep., 74 (10 Bush, 382); Stone v. F., P. & Northwestern R. R. Co., 18 Am. Rep., 559 (63 Ill., 394); 2 Metc., 149.

On the doctrine contained in the second instruction refused, he cited: Sec. 17 of art. 1 of Const. of Texas, adopted in 1876; Gulf, Colorado & Santa Fe R'y Co. v. Myra Graves, 1 vol. Tex. Law Review, p. 8; E., L. & Big Sandy R. R. Co. v. Combs, 19 Am. Rep., 67 (10 Bush, 382); Mills' Em. Domain, § 200; City of Elgin v. Eaton, 25 Am. Rep., 412 (83 Ill., 535);Johnson v. City of Parkersburg, 37 Am. Rep., 779 (16 W. Va., 402);Cent. B. U. P. R. v. Twine, 33 Am. Rep., 203 (23 Kan., 585);Stone v. F., P. & Northwestern R. R. Co., 18 Am. Rep., 556 (68 Ill., 394);Stack v. City of E. St. Louis, 28 Am. Rep., 620 (85 Ill., 377);Carli v. Still. St. R'y & Trans. Co., 41 Am. Rep., 290 (28 Minn., 373).

WEST, ASSOCIATE JUSTICE.

The bills of exceptions reserved on the trial of this cause are all incorporated in the statement of facts. The statute and the rules prescribed by this court alike require all bills of exceptions to be settled and filed during the term. R. S., arts. 1363, 1364; Rule 53, District Court.

By order of the court in this case, the time for preparing the statement of facts was extended until ten days after the final adjournment of the court. Under this authority, the statement of facts was prepared after the court adjourned and within the ten days allowed. But the bills of exception inserted in the statement of facts, being thus signed out of term time, cannot under the law be considered. See Lockett et al. v. Schurenberg, decided at this term (see ante, p. 610), where all the cases on the point are collected.

Most of the questions, however, that were intended to be saved by these bills are raised by the sixth instruction asked by appellant, and refused by the court. By that instruction the court was asked, in substance, to direct the jury, in making their estimate of the damages, if any, sustained by appellee from the construction and operation of appellant's road along West street and across Academy street, to reject entirely from their consideration all the testimony of the witnesses going to show injury or damage resulting to appellee from sparks of fire from the engines of appellant, smoke, cinders, unusual noises arising from the ringing of bells, the sounding of steam whistles and other annoyances of a like character.

There are no doubt a number of cases decided by courts of high authority, which have held that the elements of damage above enumerated are too remote, too indirect and inconsequential and general in their character, and therefore ought not to be taken into consideration by the jury in making up their final estimate of the damage caused by the continued presence and operation of a steam railway along a street or highway.

The weight of authority, however, seems to sustain the ruling of the court below in permitting the evidence under consideration to go to the jury.

In a work treating very fully and at great length of the law of damages, published as late as the year 1883, many of the cases on this question are grouped, and the rule is deduced from them that the increased exposure to fire by constructing and operating steam railways through streets near buildings and through fields is pertinent evidence, and that these matters may be allowed to be proved to show damage by the depreciation in value of the property so exposed. Vol. 3, Sutherland on Damages, pp. 436-37.

In support of his views on this point, the author cites cases from the states of Massachusetts, Ohio, New Jersey, New Hampshire, Maine, Illinois, Minnesota, and also from Pennsylvania, the recent case of the Wilmington, etc., R. R. Co. v. Strifer, 60 Pa. St., 374. Many other authorities also besides these can be found to the same effect.

The same writer also lays down the rule, that, in estimating damages in cases of this character, all the positive inconveniences, resulting from the sounding of...