J. I. Kirk v. Kansas City, Shreveport And Gulf Railway Co

• Decision Date: 20 March 1899
• Docket Number: 13,042
• Citation: 25 So. 457,51 La.Ann. 667
• Court: Louisiana Supreme Court
• Parties: J. I. KIRK ET AL. v. KANSAS CITY, SHREVEPORT AND GULF RAILWAY CO

25 So. 457

51 La.Ann. 667

J. I. KIRK ET AL. v. KANSAS CITY, SHREVEPORT AND GULF RAILWAY CO

No. 13,042

Supreme Court of Louisiana

March 20, 1899

Argued February 8, 1899

ON APPEAL from the Twelfth Judicial District Court for the Parish of Vernon. Read, J.

Scarborough & Carver, for Plaintiffs and Appellees.

T Alexander and Pujo & Moss, for Defendant and Appellant.

NICHOLLS C.J. BLANCHARD, J., takes no part, having been of counsel.

OPINION

NICHOLLS C.J.

Plaintiffs asked judgment against the defendant for $ 6,000.

The case was tried before a jury, which having returned a verdict for the plaintiffs for twenty-five hundred dollars, judgment was rendered accordingly, and defendant appealed.

Plaintiffs alleged that they were joint owners of certain property which they fully described.

That they had sold the defendant the right of way across the said land, consisting of a strip of one hundred feet, as shown by copy of the act of sale, which they annexed to their petition.

That there was situated on said land the home and family residence of J. I. Kirk, one of the plaintiffs; also a store house, at which he had theretofore conducted his mercantile business, also a valuable water mill at which he had theretofore conducted his saw mill business.

Petitioners further represented that in the construction of said road, the said railway company negligently, carelessly, wantonly and inexcusably, wrongfully, improperly and unadvisedly constructed said road bed in such a manner as to greatly damage their property by reason of the manner of the construction of said road bed. They further represented that the residence was situated about two hundred feet from the mill and site, on or near the bank of the mill pond in which water was collected for the use of the mill in running the same; that the store house was situated about two hundred feet from the residence, and almost south of the mill house, and both of which were about two hundred feet west of the residence.

They further represented that their mill pond, which was very valuable, was the only place on their property where a mill pond could be constructed with a stream that afforded a constant flow of water, making it possible to operate said saw mill by water, at least nine months of the year. That with the water furnished by said stream, made available by the situation of their mill pond, said mill was capable of cutting ten thousand feet of lumber a day during nine months of the year. That this amount of lumber could be cut at a very small expense, it not requiring over four hands to operate the mill under these conditions.

They also represented that while it was not necessary to do so, said Railway Company wantonly, illegally and improperly constructed its road bed immediately across petitioner's mill pond, driving heavy piling in the construction of the same, building their road bed immediately between the residence and the mill house and between the residence and the store, constructing a very high embankment, closing up all the drains across the swamp of the stream on which the mill is situated, thereby impeding the flow of water at high water times, jarring, bursting up and ruining the mill site by driving the enormous lot of piling near the mill house so as to utterly destroy and ruin the present mill property as constructed, destroying the mill site for future use; completely destroying the residence, the dwelling house and the site on which it is situated for residence purposes, completely destroying the business stand on account of the building of an immense embankment right at it, so that customers could not get to or from, nor the proprietor, to or from the mill house or the other house, without crossing said embankment.

They further represented that with the construction of a railway through the parish of Vernon, the value of its water mill would be very much enhanced, that is to say, the possession of a water mill which could be operated for the purpose of sawing lumber near a railway line would become a very valuable piece of property, and that the manner in which this road was constructed utterly destroyed the present and all future value to the owners from such mill and mill site, place of residence and place of business.

Petitioners therefore represented that they had been damaged in the sum of six thousand dollars ($ 6,000), for which they desired judgment against said railway company.

Defendant answered, pleading, first, the general issue. It admitted that it acquired the right of way through lands of plaintiffs, as described in the copy of deed annexed to plaintiffs' petition, and that the road bed was constructed thereon.

It also averred that the said road was properly located and constructed through said land, with all due regard to the topography of the country, as well as the rights and interest of the plaintiffs.

It denied that plaintiffs had suffered any special damage whatever from the construction of its road through said lands, or any damage of any kinds not contemplated and included in the right of way granted and conveyed by them to the Railway Company. And further, it specially denied that the mill or mill site of plaintiffs was injured in any way, or suffered any damage which was occasioned by any act or fault on the part of respondent or its employees, contractors or agents. That said mill was old, poorly constructed, of little value and subject to washouts, which had been of frequent occurrence prior to the location or construction of the railroad in its vicinity, and if any washout occurred subsequent to said location and during the construction of the railroad, as alleged, same was due to inherent defects in the mill itself and appurtenances, and not to any fault of respondents.

On the twenty-sixth of June, 1896, an act sous seing prive was passed between the plaintiffs and the defendant, in which the plaintiffs, for and in consideration of one dollar ($ 1.00), and the advantages, benefits and conveniences resulting from the building of the Kansas City, Shreveport and Gulf Railroad Company through their lands, and in further consideration of the enhancement in value of their adjoining lands by the construction of their railroad, did thereby sell, convey and deliver unto said Railroad Company, its successors and assigns, the right of way over and across a certain tract of land situated in the parish of Vernon, described in the said deed; the right of way granted being one hundred feet in width, as then surveyed, or might be located, with the privilege to the Railroad Company of cutting down all trees along the line of the right of way outside of its limits, which in falling might reach the track. The right of way was declared to be given in perpetuity, so long as it should be used by said company, its successors or assigns, as a railroad company.

The line of location was established by survey and known to plaintiffs at the time the right of way deed was executed.

On this tract of land was a water mill, storehouse, dwelling and stable, etc.

During the construction of the road in January, 1897, and while piles were being driven in the mill pond, the sluice way in which the gate was placed washed out, and also the mill foundation. The mill remained and is still in place.

The mill was a wooden structure with similar foundation, built in 1858, and was used for ginning cotton, grinding corn and sawing lumber. Its lumber manufacturing capacity is testified to as being from 600 to 4000 feet a day, board measure. Its ginning and grinding capacity is not shown by the record with any degree of certainty.

After the break occurred no effort was made to replace or repair the foundation, and it was at the time of the trial in the same condition as when the washout took place.

While the road was in course of construction, the store building was removed from the right of way, at the expense of the Company, by Mr. Foster, the tenant of plaintiffs, to the place it occupied at the time of the filing of this suit, about thirty-four feet from the right of way.

The embankment between the dwelling and store is six feet high, and at this point a crossing was put in at grade, with filled approaches, so as to make it an easy pull for teams.

The mill is 119 feet 5 inches, and the dwelling 130 feet from the center of the track.

The mill is located on East Anacoco, about fourteen miles from its source, at a point where the channel is about three hundred feet wide, and the land on both sides makes what is known as a "bottom," having a width of 2600 feet, including bed of creek.

In the construction of the road it became necessary to cross this bottom or low land and creek, which was done by filling and bridging, the fill covering 1956 feet and the bridge 644 feet.

The entire mill pond and part of the low overflowed land was bridged, and the road was constructed so as to allow ample water way, according to defendant, and insufficient water way according to plaintiffs.

The mill dam is one hundred and thirty-four feet from the dam.

At the time of the washing away of the gate in the sluice way, and the break in the foundation, there were about seven feet of water in the pond, which, according to the testimony of plaintiff and Foster, was not sufficient to cause the break which they attribute to the jar caused by the driving of piles.

Several breaks had previously occurred in the damaged mill foundations, some when one Dr. Payne was operating the mill, and others while it was in the possession of Foster, and as late as 1896.

Foster and his son, both witnesses for plaintiff, say that when the piling was being driven, the jar could be felt in the mill, and the saw would ring at each stroke of the hammer.

Knoble,...