Mason City & Ft. D.R. Co. v. Wolf

• Decision Date: 05 November 1906
• Docket Number: 2,327.
• Citation: 148 F. 961
• Parties: MASON CITY & FT. D. R. CO. v. WOLF.
• Court: U.S. Court of Appeals — Eighth Circuit

148 F. 961

MASON CITY & FT. D. R. CO. v. WOLF.

No. 2,327.

Circuit Court, of Appeals. Eighth Circuit.

November 5, 1906

William D. McHugh (Asa G. Briggs, on the brief), for plaintiff in error.

H. C Brome (A. H. Burnett, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

Upon the plaintiff's lot in Omaha, Neb., were a double dwelling house and a cottage. No part of her property was taken or physically encroached upon by the railroad company nor was there any proof of negligent construction of its works or operation of its engines and cars. But evidence was received at the trial of injury resulting from a deep excavation made by the company in adjoining lots purchased and owned by it, from the extension of the excavation across the public street upon which plaintiff's lot fronts and also across the alley that runs in the rear, from the noises of the operation of the road, from smoke and cinders emitted by the engines, and from the vibration of plaintiff's ground caused by the movement of the engines and cars. The excavation was from 20 to 30 feet deep, and at its nearest point it was about 10 feet from plaintiff's property line. The street and alley directly in front and at the rear were not touched, and full and unobstructed use thereof towards the north was not impaired; but on the south, a short distance from the south line of plaintiff's lot, both thoroughfares were permanently destroyed by the excavation and the company fenced them off to prevent accidents.

At the trial the company, by appropriate objections to the evidence, motions, and requested instructions, sought to have each element of damage claimed excluded from consideration by the jury; but the court admitted all of them, with the qualification, however, that in respect of smoke and the noises of railroad operation there must be an injurious effect upon the value of plaintiff's lot in the mind of a good-faith purchaser, and not a mere personal inconvenience to the occupants. With this explanation the court charged the jury that plaintiff was entitled to recover whatever the evidence showed her lot had depreciated in value by reason of the construction and operation of the railroad in proximity thereto, and that the amount was determinable by the difference between the market value before the road was built and the market value afterwards. It was conceded that the city council of Omaha had granted by ordinance the right of way to the company, and had vacated those portions of the street and alley within the exterior limits of the excavation, and also that the company had contracted to indemnify the city against all damages resulting from the action of the latter. The controlling questions in the case are whether each of the elements of injury above mentioned were proper for the consideration of the jury in the assessment of damages, and whether the trial court in its instructions correctly announced the measure of recovery. The solution of these questions involves a consideration of the fundamental law of the state and the decisions of its highest judicial tribunal.

The Constitution of Nebraska (section 21, art. 1, Const. 1875) provides:

'The property of no person shall be taken or damaged for public use without just compensation.'

Gottschalk v. Railroad, 14 Neb. 550, 16 N.W. 475, 17 N.W. 120: In this case the railroad company, acting under municipal authority, constructed its road in an alley in the rear of plaintiff's lot. The court held that the property owner had a cause of action. After referring to the Nebraska Constitution of 1866, which limited the recovery to cases in which property was 'taken' for public use, and the enlargement of the right of recovery by the addition of the words 'or damaged' in the Constitution of 1875, it said:

'The evident object of the amendment was to afford relief in certain cases where, under our former Constitution, none could be given. It was to grant relief in cases where there was no direct injury to the real estate itself, but some physical disturbance of a right which the owner possesses in connection with his estate, by reason of which he sustains special injury in respect to such property in excess of that sustained by the public at large. To this extent the property owner is entitled to recover. It is not necessary, to entitle a party to recover, that there should be a direct physical injury to his property, if he has sustained damages in respect to the property itself, whereby its value has been permanently impaired and diminished. This is but justice. While public improvements are essential to progress and to the welfare of the race, yet as the public are to receive the benefits, whether by the opening of streets and public grounds or by the construction of railways, the party receiving the benefit should bear the burden. This should not be cast upon others.'

In support of the conclusions reached the court employed liberal quotations from the case of Rigney v. Chicago, 102 Ill. 64, where, in considering a constitutional provision like that of Nebraska, the Illinois court said:

'But under the present Constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which by the common law would, in the absence of any constitutional or statutory provisions, give a right of action. * * * The question, then, recurs: What additional class did the framers of the new Constitution intent to provide for which are not embraced in the old? While it is clear that the present Constitution was intended to afford redress in a certain class of cases for which there was no remedy under the old Constitution, yet we think it equally clear that it was not intended to reach every possible injury which is necessarily incident to the ownership of property in towns or cities, which directly impair the value of private property, for which the law does not and never has afforded any relief. For instance, the building of a jail, police station or the like, will generally cause a direct depreciation in the value of the neighboring property, yet that is clearly a case of damnum absque injuria. So, as to an obstruction in a public street, if it does not practically affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery, it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present Constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law.'

Railroad v. Ingalls, 15 Neb. 125, 16 N.W. 762: Here the railroad was laid upon the side of a country road adjacent to the plaintiff's land, and a recovery by him was sustained against a contention that the railroad merely afforded one of the modes of enjoyment of the public easement and the county commissioners had expressly authorized its construction. There was no especial discussion in the opinion of the constitutional provision or the limitations of its application.

Railroad v. Reinhackle, 15 Neb. 279, 18 N.W. 69, 48 Am.Rep. 342: A railroad company, with leave of the city authorities, laid two tracks upon the east side of a street, upon the opposite side of which the plaintiff's lot abutted. The track near the middle of the street was used as a team track, and was constantly kept nearly filled with cars to be loaded and unloaded. It was held that every lot owner whose lot abutted on the street had a special interest therein distinct from that of the public at large, and that the permission of the city authorities to a railroad company to use the street was no defense to an action by an abutting lot owner who suffered special damage from a permanent obstruction. The court also approved of an instruction that the measure of damage was the difference between the market value of the property before the permanent obstruction and the market value afterwards.

City of Omaha v. Kramer, 25 Neb. 489, 41 N.W. 295, 13 Am.St.Rep. 504: The damages claimed in this case were caused by the construction of a viaduct over railroad tracks upon a street upon which plaintiff's lots fronted. The court declined to follow the rule, announced in Penn. R. Co. v. Marchant, 119 Pa. 541, 13 A. 690, 4 Am.St.Rep. 659, that under a constitutional provision similar to that of Nebraska there can be no recovery in the absence of 'such a legal wrong as would be the subject of an action for damages at common law. ' Referring to the Nebraska provision, the court added:

'The provision, therefore, is remedial in its nature, and the well-known rule, that in the construction of remedial statutes three points are to be considered, viz., the old law, the mischief, and the remedy, and so to construe the act as to suppress the mischief and advance the remedy, is to be applied. 1 Blackstone, Com. 87. Applying this rule to the provision in question, and it embraces all damages which affect the value of a person's property, and includes cases like that under consideration. In other words, the words 'or damaged,' in section 21, art. 1, of the

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