Missouri Pacific Railroad Co. v. Juneau

• Decision Date: 19 November 1928
• Docket Number: 271
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. JUNEAU
• Court: Arkansas Supreme Court

10 S.W.2d 867

178 Ark. 417

MISSOURI PACIFIC RAILROAD COMPANY v. JUNEAU

No. 271

Supreme Court of Arkansas

November 19, 1928

Appeal from Garland Circuit Court; Earl Witt, Judge; affirmed.

Case affirmed.

E B. Kinsworthy and R. M. Ryan, for appellant.

Murphy & Wood, for appellee.

OPINION

MEHAFFY, J.

The appellee brought suit in the Garland Circuit Court against the appellant, alleging that he was the owner of certain property, describing it, and that, in 1900, the Little Rock Hot Springs & Western Railroad Company constructed its main line track in Valley Street, west of plaintiff's property, and about forty-five feet from said property; that since that time the Missouri Pacific has become the owner of the property, and that, some time in 1927, the appellant changed the location of its tracks, and placed its tracks in Valley Street, west of plaintiff's property, so that said track runs within about 16 feet of his property; that it crosses the sidewalk on the east side of Valley Street, a short distance south of plaintiff's property, and that it is now operating its trains and railroad business over said track, located within 16 feet of plaintiff's property that it has abandoned and torn up the tracks over which it formerly operated. That plaintiff has a two-story building situated on his property, and is operating a grocery business on the first floor of said building, and occupies the upper story as a home and rooming house; that the change in the location of defendant's tracks has obstructed the use of Valley Street, and has made the property less accessible, and almost destroyed the use of Valley Street south of the plaintiff's property by pedestrians; that the defendant operates heavy trains and heavy engines over said track, and is constantly switching cars over said track along Valley Street; that the change in the location has greatly damaged plaintiff's property, on account of the noise and vibration caused by the operation of its trains and engines and the switching of cars, and the smoke and dirt from said tracks, and the dust and cinders caused by the passage of such trains, engines and cars over said track, and that it has obstructed the use of Valley Street by the public. That the change in its tracks has greatly damaged plaintiff's business on account of the noise, smoke, steam, dust and vibration, and that plaintiff has been damaged in the sum of $ 3,000. It also alleged that the city of Hot Springs had not granted the defendant the right to change its location.

The appellant filed its answer, denying all the material allegations of plaintiff's complaint as to damaging his property, and alleged that the line constructed originally was 40.3 feet from the nearest point of plaintiff's property, and admitted that, since the relocation, its line was 21.3 feet from plaintiff's property. It admitted that it had abandoned and torn up the track over which it formerly operated. It denied that the location of the tracks and engines had obstructed the use of the street or made appellee's property less accessible, or that it destroyed the use of Valley Street south of plaintiff's property, and denied that the operation of its trains and engines damaged plaintiff's property in any way. It alleged in its answer that the city council of Hot Springs, in 1894, passed an ordinance granting a franchise or right-of-way over Valley Street, opposite appellee's property, and attached said ordinance to its answer. It also alleged that, when the ordinance was passed, there was a consent to the granting of said franchise and right-of-way by the property owners along the street. It also alleged that the city council of Hot Springs, in 1899, passed an ordinance granting the same rights as above mentioned to the Little Rock, Hot Springs & Western Railroad Company, and that there was no objection to granting of said ordinances by the citizens of Hot Springs. That in 1900 the Little Rock, Hot Springs & Western Railroad Company built a line of railroad track along Valley Street, adjacent to appellee's property, and began to operate its trains over it, and continued to do so until its property was sold to the St. Louis, Iron Mountain & Southern Railroad Company, and that more than ten years ago the appellant purchased all the property of the St. Louis, Iron Mountain & Southern Railway Company in Hot Springs, including the right-of-way along Valley Street and adjacent to the property of appellee. That none of the property owners had ever objected to the building, maintaining and operating of said track, and that, under said ordinance, the appellee had no right or title in and over said Valley Street, or, if he had ever had such right, it was barred by the statute of limitations. That, when the track was originally built, Hot Springs was a small village, but that it has grown to a city of the first class and of great commercial interest, and that its business and traffic had grown so that it was impossible for appellant to perform its duties as common carrier. That the track as originally built was on the curve, and dangerous to be operated, and that in 1927 it moved its said tracks, as alleged by plaintiff, and is now operating its trains over said tracks under authority given to it by the ordinances above mentioned. It especially alleged that appellee had not been damaged, and pleaded the right and authority given to it by the ordinances as a complete defense and bar to the action. The ordinances grant to the railroad company the right to lay, maintain and operate its tracks and engines over said Valley Street, adjacent to appellee's property.

The appellee testified that his property was located on East Grand and Valley Streets, being part of lot 6, in block 40. The lot is 35 feet deep on Valley Street and 130 feet on Grand Avenue. That he acquired the property through his father, and had been in possession of it since 1905. Deeds to the property were introduced. He further testified that his property contained five rooms upstairs, and a store room and a four-room apartment with bath; that he rented out the five rooms upstairs, and ran a grocery and meat business downstairs. The size of the building was 40 feet wide, and it took up the entire ground, about 40 feet by 35 feet. The building was a frame building, with a concrete foundation. That the relocation of the tracks was made about ten months ago; that before the change was made the track was about 40 feet from his building, and that since the track has been changed it is 17 feet from the corner of his building to the nearest rail, and was 23 feet 3 inches from the front of his building to the ball of the rail. That before the track was changed appellee never paid any attention to it. That he had a driveway along by his building, and wagons and trucks and everything went along there. That, since the track has been moved over, the vibration was so great that it caused a tremor of the whole building. That you could feel it all over, and that the smoke and cinders were bad. That he never noticed this before the change was made. Six trains ran over the track every day each way, and the switch engine worked in and over said track. The railroad yards are about 250 feet north of his property. The switch engine, in switching cars, had to pass over the track near his place, and it caused him inconvenience and discomfort, and he could not leave the windows up upstairs on the side of the building next to the track. That it increased the danger from fire. That when the heavy engines passed they shook the building very materially, and that it shook articles on the shelves in the store. That before the change was made there was no vibration, and that he was not inconvenienced by reason of cinders. That the switch engine operated over the track from eight o'clock in the morning to four in the afternoon, and that sometimes in the winter a night crew would operate until about 11 o'clock. Before the change, cars and wagons could park on the west side, but it was dangerous now to park there, and a man with a team is afraid that he will get caught if he parks between the railroad and the building. If a car was parked there, no one could pass. The rails were not buried down in the ground, but the whole rail sticks up. There is a light pole or telephone pole that sets off from the building. In the passageway between the pole and the track there is not sufficient room for a car to pass.

Appellee, over the objection of appellant, testified that there had been a decrease in his business. That, prior to the change of the track, people would send their little children to the store, but they are afraid to do so now because the track is so close to the building. And appellee testified at length about his business and about the decrease in his business because of the relocation of the track. He also testified, over the objection of appellant, about ability to rent his rooms. Admitted that he had sued the railroad company twice before. That in 1912 the train ran over him, and cut off his leg. That he was working for them at the time. That he got $ 7,500 judgment against them, and that in another suit he sued the M. D. & G. for running through and taking part of his building, and that he recovered $ 1,900 for that. Before the relocation of the tracks he rented his rooms for $ 2 a week, and he now gets $ 1.50 a week.

He testified that engines will throw cinders more at 17 feet than they will at 40 feet, and that it depends upon the wind which way the cinders blow. That the present track is now 17 feet from his building, and that the little building that offsets into the street is 11 feet from the railroad track. That the closest rail to his house proper is about 17 feet. None of the railroad track is on his...