Harman v. Louisville, N. O. & T. R. Co.

• Decision Date: 07 May 1889
• Citation: 11 S.W. 703
• Parties: HARMAN <I>v.</I> LOUISVILLE, N. O. & T. R. CO.
• Court: Tennessee Supreme Court

Page 703

11 S.W. 703

HARMANv.

LOUISVILLE, N. O. & T. R. CO.

Supreme Court of Tennessee.

May 7, 1889.

Appeal from circuit court, Shelby county; L. H. ESTES, Judge.

Gantt & Patterson and A. H. Douglass, for plaintiff. Holmes Cummins, for defendant.

DICKINSON, Special Judge.

Plaintiff owned a parcel of ground in the taxing district of Shelby county, by deed which described it as "being one hundred and fifty feet on the north side of Jackson by one hundred and seventy feet on the west side of Eighth street." The Tennessee Southern Railroad Company, to whose rights and liabilities defendant, the Louisville, New Orleans & Texas Railroad Company, succeeded by permission of the taxing district, and in accordance with a contract made with it May 22, 1883, graded, under the supervision of the engineer of the district, and upon the grades fixed by him, Eighth street, in front of plaintiff's property, and laid down upon it three lines of railway tracks. Defendant at the time the suit was brought, and prior thereto, ran its cars and engines over said tracks, in the prosecution of its business as a common carrier, with great frequency, both by day and by night. On November 8, 1883, plaintiff brought a suit in the circuit court of Shelby county against the said Tennessee Southern Railroad Company for injuries alleged to have been done said realty by the said grading of Eighth street, and the building and operation of said railroad. The declaration alleged ownership in plaintiff of the ultimate fee in the street, and also an easement of way appurtenant to the abutting lot; that defendant had practically closed the street with its tracks, excavation, and fills, so as to utterly destroy its use and value as a highway, and had converted it to its exclusive use for its cars and engines; that the tracks in front of plaintiff's premises were used for leaving cars at night, and placing and switching engines; that plaintiff's business carried on upon said lots has been greatly injured; and that the property was damaged in the sum of $5,000. Defendant, by plea, denied that the street was practically closed; that it was destroyed as a highway; and that plaintiff's ingress and egress and right of way appurtenant to said property were impaired.

Plaintiff at the trial offered proof tending to show that defendant had placed three tracks on Eighth street; that prior to that time this street had been the principal way of approaching his lot; that the grade had been raised by defendant putting a high bank of earth along 100 feet of his lot, resulting in backing the water on said lot, and making it marshy; that the tracks occupied nearly the whole of the street, so that plaintiff could not pass to and from said lot with vehicles, because of the cross-ties and rails, and that he was excluded therefrom by the constant and uninterrupted occupation of said street by engines and cars passing and standing there; that defendant, throughout 1884, habitually left its engines and cars standing on said street, along said plaintiff's lot, and made it dangerous and impossible for vehicles, animals, or persons to go upon said street; that said realty, prior to the occupation of said street by defendant as aforesaid, was worth $5,000, and that because of said appropriation and occupation it had deteriorated in value to the extent of from $2,500 to $4,000; that engines have been allowed nightly and all night to stand in front of his premises, and escape steam; that plaintiff could make no use of said street as a highway for vehicles or for horses; that since the tracks of defendant were placed upon the street it was not used for the ordinary purposes of a street, nor could it be so used with safety or convenience of the public. Defendant introduced proof tending to show that the plaintiff was not lessened in value "on account of its occupation of said Eighth street with its tracks, or its engines and cars." It introduced no evidence to controvert the character of the occupation and use, as alleged and proven by plaintiff. None of the evidence was excepted to.

The court charged that defendant had the privilege to use Eighth street to the extent of laying down and operating three tracks in the prosecution of its business, and that plaintiff could recover nothing for this, nor for the injuries incident to the grading done pursuant to the contract with the taxing district. It was further charged that defendant was not entitled to the exclusive use of the street; that its use must be reasonable — such as would not materially interfere with the use of the street by plaintiff for ordinary purposes; that defendant had no right to leave its engines or trains standing on said street, so as to interfere with or obstruct travel on or over said street, except as the same is incidental to the proper running of trains; that, if defendant had exceeded the proper uses so limited, plaintiff could recover all damages sustained by such excessive use, to be arrived at by considering depreciation in value of plaintiff's property, the impairment in the value of its use, the injury to the property by the passing of trains, and annoyance from noise, sparks, smoke, and the danger from fire caused by the use made of the street by defendant. Defendant excepted to the charge but made no request of the court. A verdict was rendered for $500. Both sides appealed, but neither perfected the appeal, and the judgment was paid.

Plaintiff brought the present suit, March 10, 1886, making substantially the same allegations in regard to the laying of tracks and grading and injury to property and business therefrom as were set out in the former suit. He alleges that the cars are run on said street at excessive and dangerous speed; that they are frequently left standing thereon; that...