Gainesville, H. & W. R. Co. v. Hall

• Decision Date: 24 June 1890
• Citation: 14 S.W. 259
• Parties: GAINESVILLE, H. & W. R. CO. v. HALL.
• Court: Texas Supreme Court

14 S.W. 259

GAINESVILLE, H. & W. R. CO. v. HALL.

Supreme Court of Texas.

June 24, 1890.

Appeal from district court, Cooke county.

R. C. Foster and A. E. Wilkinson, for appellant. C. C. Potter and Stuart, Bailey & Harris, for appellee.

GAINES, J.

This action was brought by appellee against the appellant corporation to recover damages to certain real estate alleged to have been caused by the construction of the defendant's railroad, and the operation of its trains. The plaintiff's property consists of a lot in the suburbs of the city of Gainesville, upon which he resides with his family, and has a dwelling-house and other improvements appropriate to a place of residence. The dwelling-house stands 26 feet from the south boundary line of the lot. The defendant company took no part of plaintiff's land, but constructed its road parallel to such line at a distance from it of about 37 feet. The damages were claimed by reason of the vibration, noise, smoke, and noxious vapors and cinders incident to the running of trains over the road. The court charged the jury in effect to find for the plaintiff if his property had been damaged by the construction and operation of defendant's road, provided such damage resulted from the vibration, smoke, noxious vapors, and the noise of passing trains; and that they should not take into consideration any damage plaintiff had suffered in common with the community generally. The defendant asked the court to give the following charge, which was refused: "The mere construction and operation of the railroad of defendant upon land adjoining plaintiff's premises, and in the proper and usual manner in which railroads are built and operated, was not an unlawful act, nor could it be denominated a nuisance, and the inconvenience to plaintiff or the owner of the premises from such vibration, noise, and smoke as were incident to the ordinary operation of the railroad, by running from four to six trains per day past plaintiff's premises, does not give him a cause of action for damages, or depreciation in the value of his premises occasioned thereby. You are therefore instructed to return a verdict for the defendant."

The giving and refusal of these instructions, respectively, present the fundamental question in the case, and involve the construction of that portion of our present constitution which provides that "no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person." Article 1, § 17. The precise question made by the facts of this case is one of the first impression in this court. In Railway Co. v. Fuller, 63 Tex. 467, damages were allowed the plaintiff for an injury to his property resulting from the construction and operation of the defendant's railroad along a street in front of his lots. The plaintiff having an easement in the street peculiarly essential to the full enjoyment of his property, the court held that the appropriation of the street was a taking within the meaning of the constitution. But the court also say: "If, however, there has been no taking of the property of the appellee within the meaning of the constitution, there can be no doubt that it has been damaged, if the evidence offered to support the averments of the petition be true. The word `damaged' is evidently used in the sense in which the word `injured' is ordinarily understood. By `damage' is meant every loss or diminution of what is a man's own, occasioned by the fault of another, whether this results directly to the thing owned or be but an interference with the right which the owner has to the legal and proper use of his own. If by the construction of a railway or other public work an injury peculiar to a given property be inflicted upon it, or its owner be deprived of its legal and proper use, or of any right therein or thereto, — that is, if an injury, not suffered by that particular property or right in common with other property or rights in the same community or section, by reason of the general fact that the public work exists, be inflicted, — then such property may be said to be damaged." In Railway Co. v. Eddins, 60 Tex. 656, the same question was decided in the same way. The cases cited differ from the case before us in the respect that in each of them the street in front of the property damaged was appropriated, while in this the road was not constructed along or over any public highway adjacent to the plaintiff's lot. We think the language quoted from the opinion in the Fuller Case lays down the true rule. The use of the disjunctive conjunction in the provision of the constitution under consideration indicates clearly that it was not necessary that there should be a taking to entitle the owner of property to compensation for any special damage that might result to it from the construction of a public work. In Railway Co. v. Meadows, 73 Tex. 32, 11 S. W. Rep. 145, this subject came up for consideration, and the court say: "If a railroad company condemned or otherwise acquired for its purposes a right of way over land, and in constructing its road did an act injurious to an adjacent or neighboring proprietor, for which, if done by the original owner, he would have been responsible at common law, the company should be held liable to compensate the proprietor so injured. We do not understand that it was intended to give an action against those constructing public works for acts which if done by persons in pursuit of a private enterprise would not have been actionable." There is high authority for holding that the charter of a railroad company, even in the absence of a statutory or constitutional law allowing compensation for incidental damage, does not exempt it from suits by persons whose property is injuriously affected by its works, although it be properly constructed, and carefully operated, at least in cases where in pursuance of its charter the works of the corporation could have been so located as to avoid the injury. Baltimore, etc., R. Co. v. Baptist Church, 108 U. S. 317, 2 Sup. Ct. Rep. 719. The doctrine as above qualified may be sustainable; but the great weight of authority is to the effect that in the absence of constitutional restrictions the legislative grant legalizes all acts done in strict pursuance of the power conferred, and that persons whose property has been damaged, but not taken, must suffer the loss. If the power does not confer authority to do the act despite the damage, it would be the right of an owner...