Lackland v. North Missouri R.R. Co.

• Citation: 34 Mo. 259
• Parties: H. C. LACKLAND, ADM'R, &C., Respondent, v. THE NORTH MISSOURI RAILROAD COMPANY, Appellant.
• Decision Date: 31 October 1863
• Court: Missouri Supreme Court

34 Mo. 259

H. C. LACKLAND, ADM'R, &C., Respondent,

v.THE NORTH MISSOURI RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1863.

Appeal from Warren Circuit Court.

This was an action to recover damages against the defendant for obstructing the street in front of the plaintiffs' lot in the town of St. Charles, by using the same for the purposes of a railroad, to the exclusion of the plaintiffs from the use of their right of way in the street, and in diminution of the value of their property.

The answer sets up in defence that the defendant was authorized by its charter, and by certain ordinances of the city of St. Charles, to construct its railroad along and over said Main street, had a lawful right of way over said street for all the purposes and uses of said railroad, and that in consideration of the grant of the right of way from said city, and under contract with the city authorities, the defendant had macadamized and improved certain streets of the city of St. Charles, lying in the neighborhood of the plaintiffs' property aforesaid, whereby said property was increased in value.

It denies that the defendant had exclusively occupied said street, or had obstructed the same so as to exclude the plaintiffs and the public from the use thereof; or that the said street had been rendered impassable for vehicles.

It appeared in evidence, that Main street, although the ground had been for a long time dedicated to public use, had never been graded and improved, nor the grades fixed and established prior to the location of the railroad, in that part of it which passes in front of the plaintiffs' lot, nor indeed below Lewis street, some two squares or more above the property of the plaintiffs; that below Lewis street there was only an unimproved road or carriage track running over the natural surface of the ground within the area dedicated to public use for a street, by means of which the plaintiffs had had access to their lot; that when the railroad came to be built, and the defendant was about to execute the contract with the city for the improvement of the streets, the grades of the cross-streets from Lewis street above, down to Franklin street, below the plaintiffs' lot, were for the first time fixed and established by the city, whereby the grade of Main street was also established at the places of crossing of said cross-streets, and thus the general grade of Main street, in that part, was at the same time ascertained, in the continuation thereof below Lewis street, to which point only the street had been previously graded and improved to the level of the established grade; that in the construction of the railroad the track had been built upon the continuation of the grade of Main street, as thus established, down to Franklin street, as nearly as practicable, and within the differences of level (amounting to a few inches only) between the middle of blocks and the cross-streets required for suitable drainage of an improved street; that this grade of Main street, and of the railroad tracks and switches, was some two or three feet higher than the natural surface of the ground, and the old carriage track thereon, opposite to the plaintiffs' property, whereby the street became impassable for vehicles; that, in fact, the road leading out of the city by that way had been for a long time before rendered impassable for carriages by reason of deep gullies washed out in the road at Franklin street and other places further down, and for that reason the whole public travel in that direction turned off from Main street at Clark or Lewis street, and went up to Second street, and thence down Second street to the country below; that this Second street (and also Clark street) was one of the streets included in the contract of the defendant with the city for the improvement of certain streets, in consideration of the right of way along Main street in the part in question, and that after the construction of the railroad as before this part of Main street was used only by the few inhabitants living on the street in that neighborhood.

There was also evidence tending to show that the sidetrack and switches were used in making up trains; that long trains of cars sometimes stood for several hours on the track opposite to the plaintiffs' property; that on some occasions cattle-cars had been cleaned out into the street, creating a nuisance, and that a cattle-way had been erected and used on one side of the street, and between the edge of the street and the track, obstructing the passage of vehicles along the natural surface of the ground on that side.

There was evidence tending to show that in consequence of this condition of the street, during the time mentioned in the petition, the plaintiffs had suffered damage in respect of their use of the saw-mill for milling purposes, and that they had sustained damage in respect of the value of their property.

There was also evidence tending to show that the value of the plaintiffs' lot had been on the whole greatly enhanced, more than double in value, by the building of the railroad and by the improvements made under said contract; and that even for the general purposes of a saw-mill, the plaintiffs' property had become more valuable, if properly employed, since the construction of the railroad, than it was before.

The city ordinances and contract were in evidence.

The plaintiffs asked the following instructions, which were given, and the defendant excepted:

1. If the jury believe from the evidence that the property of the plaintiffs mentioned in their petition was injured in value, or that the business and operations of their saw-mill was incommoded or obstructed to the damage of the plaintiffs, or that the ways and approaches to said lot and mill were cut off, destroyed or obstructed by reason of the acts of the defendant, in constructing the main track of the railroad in such manner as to prevent the use of the street, or in laying the side-track close to the plaintiffs' property, along the east side of Main street and below Franklin street, or in laying the switch track connecting the two tracks aforesaid; or in the laying of ties, beams and iron rails, in such manner as to prevent the use of the street; or in the erection of said cattle-way or switch frames, and other obstructions in said streets, such as ditches; or by running cars and locomotives back and forth in said street, for the purpose of making up trains of cars; or by leaving cars and trains of cars standing on said Main and Franklin streets, in front of plaintiffs' property; or by unloading cars or using said streets for the purpose of a depot yard in such manner as to prevent the public from using said street, or so as to cut off plaintiffs' access to their property, then the jury must find for plaintiffs such damages as the evidence shows the plaintiffs have sustained, not exceeding the amount claimed in their petition.

2. If the jury believe that the plaintiffs have sustained damages by reason of the acts of the defendant, as set forth in the foregoing instruction and shown in the evidence, then the act of the Legislature incorporating defendant, or the act of the City Council of St. Charles granting the mere right of way along Main street to the defendant, will, of itself, constitute no defence for the injury done by defendant.

3. In estimating the damages resulting to plaintiffs on account of the acts of the defendant, the jury ought to take into consideration all the natural and proximate consequences of the acts of defendant complained of and proved to the satisfaction of the jury, and include all damages to plaintiffs of which such acts were the efficient cause.

The following instructions were given for the defendant:

1. The plaintiffs are not entitled to recover damages for any obstructions placed in the street, if the injury arising therefrom is shared by the public at large in their use of the street as a highway, unless he has shown some special damage sustained by himself, apart from such general and public injury; and if such special damage consist in the diminution of the value of his adjacent lot, he is not entitled to recover therefor, unless he has shown that the obstructions were such as to prevent the public from using the street, and to cut off the plaintiffs' access to their lot.

2. In order to constitute such a destruction of the street as will entitle plaintiffs to recover in accordance with the preceding instruction, it is not sufficient to show a mere temporary suspension of its availability while the said road was in progress of construction; and if it appear that upon the completion of the road, according to its original design, (whether before or since the commencement of suit) the street was not totally obstructed, and the public could use it as such, except when in the actual occupancy of defendant in its ordinary purposes as a means of travel and transportation, then plaintiffs cannot recover for any consequent diminution of the value of their lot.

3. The temporary occupancy of the street by defendant, in the ordinary course of its business as a public carrier, is not such an obstruction of the street or highway as will entitle the plaintiffs to damages for any alleged diminution in the value of their lot.

4. Even if the jury should believe that the plaintiffs are entitled to recover damages under the instructions given, yet if they also find that the defendant, in consideration of the grant of the right of way through the street by the city, did certain work in the improvement of adjacent streets, in filling, grading and paving them, and building a sewer, and that the work so done enhanced the value of the plaintiffs' property, then the defendant is entitled to have the full amount of such enhancement set off against the amount of plaintiffs' damages in reduction thereof.

5. The jury are instructed that the use of the street for the purposes of a railroad, in its ordinary use as a...