Morris v. Oregon Short Line R. Co., 2029

• Court: Supreme Court of Utah
• Writing for the Court: FRICK, J.
• Citation: 102 P. 629,36 Utah 14
• Parties: MARY E. MORRIS, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, Appellant
• Decision Date: 30 June 1909
• Docket Number: 2029

102 P. 629

36 Utah 14

MARY E. MORRIS, Respondent,
v.
THE OREGON SHORT LINE RAILROAD COMPANY, Appellant

No. 2029

Supreme Court of Utah

June 30, 1909

Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.

Action to recover damages to property.

From a judgment for plaintiff defendant appealed.

AFFIRMED.

P. L. Williams, Geo. H. Smith, Jno. G. Willis, and H. B. Thompson for appellant.

N. V. Jones for respondent.

RESPONDENT'S AUTHORITIES.

Enc. of Evidence, vol. 5, pp. 203, 204, 213, 216, 221, 227, 229, 233; Railroad v. Todd (Neb.), 58 N.W. 59; Railroad v. Beeson (Neb.), 54 N.W. 577; Railroad v. Kersey (Pa. St.), 19 A. 553; Weywe v. Railroad (Wis.), 31 N.W. 710 O. R. & N. Co. v. Owsly (Wash.), 38 P. 186; Railroad v. Trustees (N. C.), 10 S.E. 761; Railroad v. Wolf (Neb.), 148 F. 961.

Judgment awarding permanent damages to landowner for unauthorized appropriation by telegraph company of right of way, confers same rights on the company as a condemnation of the right of way. (Philips v. Telegraph Co., 28 Am. and Eng. R. Cases, p. 147.)

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION [102 P. 630]

[36 Utah 16] FRICK, J.

The respondent brought this action to recover damages as an abutting owner of certain property arising by reason of the construction and operation of a certain railroad in a public street of Salt Lake City. The complaint, stripped of all unnecessary verbiage, in substance, alleges: That the respondent is the owner of a certain parcel of ground one hundred by one hundred and sixty-five feet in Salt Lake City; that one hundred feet of said property abuts on a public street known as Third West street; that appellant for many years had operated a double-track, standard-gauge, steam railroad in said street immediately in front of respondent's property; that prior to the filing of the complaint the appellant had commenced and had "practically" completed the construction of two other tracks which connected with the first two tracks immediately in front of respondent's property, and then bear in a southwesterly direction across the south half of the street, one of which tracks passes within 9 feet and the other within 19 feet from the northwest corner of respondent's lot; that said tracks will be permanently used by appellant for the passage of its freight and passenger trains, and will also be used, with the permission of appellant, by another railroad company for the passage of its trains; that, in addition to the local traffic, many of said trains will pass between Salt Lake City and other distant points on the Pacific coast, northwest and southwest; that many heavy engines and trains of cars, both freight and passenger, together with switch engines switching cars, will, both day and night, pass to and fro in front of respondent's property; that by reason of the foregoing facts respondent's property will be injuriously affected; that the ingress and egress to and from the same will be greatly impeded; and that by other means directly attributable to the laying of said tracks, and the operation of said trains over them, as stated, the value of said property has been greatly depreciated. No damages are claimed by reason of the laying and the operation of trains over the first two tracks. Neither is there any claim made that the appellant did not have the legal right to lay [36 Utah 17] said...