McMahon & Perrin v. St. Louis, Arkansas And Texas Railroad Co.

• Decision Date: 01 October 1889
• Docket Number: 244
• Citation: 6 So. 640,41 La.Ann. 827
• Court: Louisiana Supreme Court
• Parties: McMAHON AND PERRIN v. THE ST. LOUIS, ARKANSAS AND TEXAS RAILROAD COMPANY

6 So. 640

41 La.Ann. 827

McMAHON AND PERRIN v. THE ST. LOUIS, ARKANSAS AND TEXAS RAILROAD COMPANY

No. 244

Supreme Court of Louisiana

October 1, 1889

APPEAL from the First District Court, Parish of Caddo. Hicks, J.

R. J Looney, for Plaintiffs and Appellees.

Alexander & Blanchard, for Defendant and Appellant.

OPINION

FENNER, J.

Plaintiffs are the lessees from the City of Shreveport of a certain lot of ground for an original term of ten years, of which about five years had expired at date of this suit. They owned a building constructed on said lot in which they conducted a wood and hide business.

They brought a suit against the defendant railroad company alleging that, against their protest, the said company had laid a railroad bed and track along Commerce street, which obstructed their trade and business and rendered their lease and buildings valueless; that these works are a trespass on their rights and have damaged them in the sum of $ 5000, for which they ask judgment.

Subsequently they filed a second suit, in which they averred that the railroad company was making further constructions of a similar character, the effect of which would occasion an additional damage of $ 5000, unless restrained, and they asked for an injunction prohibiting further construction, and for a final judgment making said injunction perpetual, and compelling the defendant to remove the works already built and granting the additional $ 5000 damages.

On application the defendant was permitted to dissolve the injunction on bond, of which the plaintiffs bitterly complain. We think the action of the judge was clearly legal and proper.

The petition did not even allege that the injury was irreparable on the contrary the damage, present and prospective, was very exactly appraised in dollars and cents, and the case presents no feature of injury not readily and fully appreciable by that standard. The case falls within no recognized exception to the general rule of the Code of Practice, Article 307 authorizing the bonding of injunctions when "the act prohibited is not such as may work an irreparable injury."

It is true the Constitution, Article 156, provides that "Private property shall not be taken nor damaged for public purposes without adequate compensation being first paid." We will not say what might be the effect of this article on the right to bond if the act prohibited involved the taking of property, the value of which might be settled in advance. But in this case there is no taking of plaintiffs' property, which is not invaded or touched. The damages claimed are purely consequential in their nature, necessarily conjectural, and impossible of any accurate determination except after the construction of the road. To impose upon the parties the necessity of settling and paying such damages before proceeding with the work would be to require a manifest impossibility; and if such an injunction could not be bonded it would operate a perpetual bar to the construction of public works, which was certainly not contemplated by the Constitution.

The two cases were brought to issue by answers of defendant, setting up that their road was constructed on a public street, under lawful authority of the City of Shreveport, with due care and prudence, and denying their liability for the damages claimed. They were consolidated and tried together and culminated in a judgment against the defendant for $ 1500 damages, from which the latter appeals. The plaintiffs ask an amendment perpetuating the injunction and compelling removal of the road.

The evidence satisfies us that the track is laid in accordance with the permission granted by the municipal authorities, at least so far as the locality in question is concerned.

The track does not approach nearer than within twenty-six feet of plaintiffs' building, and about nine feet from his banquette. It is laid flush with the street, or nearly so, and a well planked crossing is provided.

There is no taking of plaintiffs' property and no invasion of, or trespass upon it, in any manner whatsoever.

The defendant has done nothing but what it had a legal right to do, and it has exercised that right in a proper, prudent and cautious manner, inflicting upon plaintiffs no injury or damage except such as necessarily results from the exercise of the right.

The question primarily to be determined is, what are the nature and measure of the obligations incurred by defendant towards plaintiff by reason of the former's exercise of this legal right.

The ordinary rule of the law exonerates a party from responsibility for damages resulting from the prudent and careful exercise of...