Johnson v. Utah-Idaho Cent. Ry. Co.

• Decision Date: 24 September 1926
• Docket Number: 4328
• Citation: 249 P. 1036,68 Utah 309
• Court: Utah Supreme Court
• Parties: JOHNSON v. UTAH-IDAHO CENT. RY. CO

249 P. 1036

68 Utah 309

JOHNSON v. UTAH-IDAHO CENT. RY. CO

No. 4328

Supreme Court of Utah

September 24, 1926

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Action by Harriet A. Johnson against the Utah-Idaho Central Railway Company, Judgment for defendant, and plaintiff appeals.

AFFIRMED.

H. L Mulliner, of Salt Lake City, and Sam. C. Powell, of Ogden for appellant.

De Vine, Howell, Stine & Gwilliam and A. W. Agee, all of Ogden, for respondent.

THURMAN, J. FRICK, CHERRY, and STRAUP, JJ., concur. GIDEON, C. J., did not participate.

OPINION

THURMAN, J.

This is an action to recover damages for the depreciation of the value of plaintiff's property by the construction and operation of defendant's railroad.

Plaintiff's property, consisting of several dwelling houses, outhouses, lawns, trees, flower gardens, and other improvements, abuts on Lincoln avenue, in Ogden City, Utah, and defendant's railroad is constructed along and upon said avenue, and both freight and passenger cars are operated thereon. The road has been so operated ever since the year 1915, when it was constructed on said avenue. It is alleged by the plaintiff that the construction and operation of said road is without permission, franchise, or authority from Ogden City, and that the manner in which cars, especially freight cars, have been operated thereon for more than three years prior to the commencement of the action in November, 1924, is and has been a permanent nuisance for which plaintiff seeks damages, once for all, for the depreciation of the value of her property.

Without entering into particulars as to the nature of the damage alleged, it is sufficient to say that it is such that plaintiff is entitled to compensation therefor, unless her cause of action is barred by the statute of limitations pleaded by the defendant.

Defendant, by its answer, alleges the construction of the railroad along and upon Lincoln avenue in front of plaintiff's premises by its predecessors in interest in 1915; that it was constructed under and by virtue of a franchise granted by Ogden City in 1914 and other franchise ordinances prior thereto granting to the grantee therein the rights of common carriers; that both freight and passenger cars carrying freight and passengers have been operated thereon ever since the road was constructed, without complaint or protest of Ogden City or any of its officers and without protest or objection on the part of plaintiff. Defendant also alleges that plaintiff is estopped from now claiming damages on account of the construction and operation of said railroad, and pleads in bar the four-year statute of limitations.

A jury was impaneled to try the cause. At the conclusion of the evidence, on motion of defendant, the court directed the jury to find for the defendant no cause of action. The grounds upon which the motion was made and granted are not disclosed by the record. It is inferable, however, that the court was of opinion the action was barred by the statute of limitations pleaded by defendant. Judgment was entered for defendant, and plaintiff appeals.

The theory of appellant's contention, as appears from counsel's brief, seems to be that this is an action for damages caused by a nuisance, and that the statute of limitations never runs against such an action. The plaintiff, however, is suing for damages for the depreciation of the value of her property caused by the construction and operation of the railroad, and she is suing for such damages as she would be entitled to if this were an action by the railroad company to condemn her property for railroad purposes. It is not an action to abate a nuisance, nor is it an action for some special and extraordinary injury occurring within the period of limitations. She bases her right to compensation upon the constitutional provision which prohibits the taking or damaging of private property for public use without compensation, upon which provision she specifically relies in her complaint. This is the basis of her action not only as appears from the complaint, but the evidence introduced by plaintiff on the question of damages sustained by her was directed solely to the difference between the value of her property without the railroad in front of her property and with the railroad, as it was constructed and operated. The evidence is uncontradicted that the road was constructed on Lincoln avenue in front of plaintiff's premises in 1915; that it is not only a part of the Ogden Street Railway system but is also a part of the interurban system extending from Ogden to Preston, Idaho, and freight as well as passengers have been carried thereon ever since said last-mentioned date. The road is operated by electricity. It has a spur connection with the Denver & Rio Grande Railway, which is exclusively for the transportation of freight into northern Utah and Idaho. The regular schedule is one freight train each way daily over the line to Idaho.

Whether or not plaintiff would have the right to institute an action to abate the nuisance, if such it could be called, for operating freight cars or making up freight trains in front of her premises as alleged in her complaint, is, in our view, immaterial here and should not be considered as a factor in our deliberation. She instituted her action, once for all, for the recovery of damages for the depreciation of the value of her property because of the construction and operation of the railroad. The operation of freight trains on the road and the making up of freight trains in front of her premises undoubtedly enhanced the damages to which she would be entitled, assuming that her action had been seasonably commenced. It is also true, as alleged in her complaint, that the business of the railroad has increased in the last few years within the statutory period of limitations, but the increase has been the same in kind and differs only in degree, all of which must have been foreseen when the road was constructed and put in operation.

In view of the facts and the nature of the case we are of opinion it falls within the rule announced in O'Neill v. Railroad, 38 Utah 475, 114 P. 127, and Morris v. Railroad, 36 Utah 14, 102 P. 629. In the last-mentioned case, the plaintiff was an abutting owner upon one of the streets of Salt Lake City. The defendant operated a double track, standard gauge, steam railroad on the street in front of plaintiff's property. Plaintiff brought an action to recover damages for the depreciation of the value of her property because of the construction and operation of the railroad and divers injuries resulting therefrom. The statute of limitations was not involved in that case but the rule was announced that, by virtue of article 1, section 22, of the state Constitution, which provides that "private property shall not be taken or damaged for public use without just compensation," the plaintiff was entitled to recover damages for such use of the street by the railroad company. It is exactly upon that principle that plaintiff in the instant case seeks to recover damages.

In the O'Niell Case, supra, the railroad company constructed its railroad on its own property but in such proximity to O'Niell's property that injury resulted from the operation of the railroad. O'Niell brought an action to recover damages for depreciation of its value. The defendant pleaded in bar the three-year statute of limitations. The road had been constructed within four years but not within three. Plaintiff had judgment, and defendant appealed. This court held that the four-year statute applied and affirmed the judgment. In its opinion in the case, at page 480 of 38 Utah (114 P. 129), the court, after commenting on the rule announced in the Morris Case, said:

"We are clearly of the opinion that actions like the case of Morris v. O. S. L. R. Co., supra, and one like the case at bar, fall within the provisions of section 2883, which provides for a four-year limitation in all cases that are not otherwise especially provided for."

It is true that, in both the Morris and O'Neill Cases, there was no contention that the railroad was not operated in an ordinary and careful manner, while here the contention is made that it was operated (especially for hauling freight) without authority and in such manner as to constitute a nuisance. But, as alleged in the complaint, it was a permanent nuisance and amounted to a taking and damaging of plaintiff's property for public use without just compensation. Plaintiff seeks to recover damages upon that theory by virtue of the constitutional provision to which we have referred. Counsel for appellant cite the following Utah cases, but fail to show their application to the case at bar. Dooly Block v. Rapid Transit Co., 9 Utah 31, 33 P. 229, 24 L. R. A. 610; Cereghino v. O. S. L. R. Co., 26 Utah 467, 73 P. 634, 99 Am. St. Rep. 843; Stockdale v. Rio Grande W. R. Co., 28 Utah 201, 77 P. 849; Jordan v. Utah Railway Co., 47 Utah 519, 156 P. 939; Barboglio v. Gibson, 61 Utah 314, 213, 213 P. 385, P. 385; Thackery v. Union Portland Cement Co., 64 Utah 437, 231 P. 813.

None of the above-cited cases, except the Thackery case, has the slightest application to the issue presented here. The Thackery Case was one in which the plaintiff brought an action against the cement company for damages to his land and crops growing thereon and to his home, as a place of residence, by permitting small particles of cement, dust and smoke to escape and pass from appellant's plant and fall upon respondent's premises. The action was also for an abatement of the nuisance, but this feature of the case was abandoned at the trial. The cement plant was constructed in 1909, and the action was not commenced until 1919....