O'Neill v. Pedro

• Decision Date: 09 February 1911
• Docket Number: 2183
• Citation: 114 P. 127,38 Utah 475
• Parties: O'NEILL v. SAN PEDRO, LOS ANGELES AND SALT LAKE RAILROAD COMPANY
• Court: Utah Supreme Court

114 P. 127

38 Utah 475

O'NEILL v. SAN PEDRO, LOS ANGELES AND SALT LAKE RAILROAD COMPANY

No. 2183

Supreme Court of Utah

February 9, 1911

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by William O'Neill against the San Pedro, Los Angeles and Salt Lake Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Penneil Cherrington for appellant.

D. B Hempstead for respondent.

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

OPINION

FRICK, C. J.

Respondent brought this action against appellant to recover for alleged injuries to respondent's dwelling house and premises, which, he alleged, were caused by the operation of appellant's engines and trains. The material allegations in the complaint, in substance, are: That respondent in January, 1904, became, and when this action was commenced continued to be, the owner in fee of certain real property in Salt Lake County; that ever since he became such owner he maintained a dwelling house on said premises in which he lived, and continues to live, with his family; that in the year 1905 appellant constructed a railroad track on premises belonging to it, which are immediately adjoining the premises of respondent as aforesaid, and that appellant ever since said time has maintained and continues to maintain said track, which is only twenty-one feet distant from respondent's said dwelling house on the premises aforesaid; that ever since the construction of said railroad track, and up to the commencement of this action, appellant has operated engines propelled by steam power to which were attached both freight and passenger trains, and which engines and trains were and are being operated over said track both by day and by night; that the operation of said engines and trains caused the ground upon which said dwelling house stands, together with said house, to tremble and shake, and by reason thereof the walls of said house have become cracked in various places, and said house by reason thereof is in a dangerous condition and will eventually fall; that the shaking of said house and the smoke and cinders incident to the operation of said engines and trains over said track have practically made said dwelling house uninhabitable, and have greatly reduced the value of appellant's said property. He further alleged that the damages sustained by him amounted to the sum of one thousand, and five hundred dollars, for which he prayed judgment. The appellant interposed a demurrer to the complaint on the ground that the action was barred by reason of subdivision 2, section 2877, Comp. Laws 1907, which, in substance, provides that "an action for waste or trespass of real property" must be commenced within three years after the cause of action has accrued. The demurrer was overruled, and the appellant answered, denying that respondent was the owner of the property, but admitted that it had constructed a railroad track, and that it operated engines and trains over it as alleged, and denied all other allegations contained in the complaint. As an affirmative defense appellant in its answer again interposed the plea that the action was barred upon the grounds stated in the demurrer. At the trial respondent, in substance, proved the allegations of his complaint, and in that regard showed to what extent the operation of the engines and trains had injured his dwelling house by shaking it, in consequence of which the walls were cracked and had settled, and that the house was otherwise injured. Respondent also produced two expert witnesses who were qualified to testify to the value of the premises both before and after the railroad was constructed and operated. One of those witnesses testified that the construction, maintenance, and operation of the railroad had depreciated the salable value of respondent's premises to the extent of one thousand, five hundred dollars, and the other one testified that the premises were depreciated for the reasons aforesaid to the extent of one thousand, two hundred dollars. Appellant also produced two experts who testified with respect to the effect the operation of the railroad had upon the premises in question. One said that the construction and operation of the railroad depreciated the value of the property to the extent of four hundred dollars, and the other one placed it at two hundred dollars. After the evidence had all been submitted by both parties, the jury were permitted to inspect the premises, after which they returned a verdict in favor of respondent for the sum of one thousand, two hundred dollars. The appellant moved for a new trial. One of the grounds for a new trial was that the jury had allowed excessive damages. The court required the respondent to reduce the verdict to the sum of eight hundred dollars or submit to a new trial. Respondent elected to accept the sum of eight hundred dollars, and the court entered judgment for that amount, from which judgment this appeal is prosecuted.

We shall consider only the errors argued by appellant's counsel in his printed brief.

The first error assigned by him is that the trial court erred because it held that the action was not barred for the reasons before stated. In this connection appellant's counsel contends that the action is one which comes within the provisions of subdivision 2 of section 2877 supra. While it is true that, under our Constitution and statutes, all forms of actions have been abolished, and, for that reason, the common-law names that were applied to the various actions or remedies no longer have any practical force or effect, yet, when a court is called upon to give effect to a particular statute, the old terms, as used by the common-law writers, cannot be entirely ignored. In section 2877, supra, the term "trespass" is intended to be understood as that term always has been understood when applied to real property as contradistinguished from the general meaning of that term when applied to wrongs or transactions generally. The term "trespass," as used in section 2877, supra, must therefore be applied in a restricted sense, and, when so applied, it means a wrongful entry upon lands or the unlawful entry by one person upon the lands of another. In Hornsby v. Davis (Tenn. Ch.) 36 S.W. 159, it is said: "In law every entry upon the soil of another, in the absence of lawful authority, without the owner's license, is a trespass." For authorities sustaining the foregoing views, see Words & Phrases, p. 7089, where the cases with respect to the term "trespass" as applied to real property are collated. We are clearly of the opinion that the cause of action declared on in the case at bar is what at common law was termed an action on the case, and not one for a trespass. We are also of the opinion that, were it not for the provisions contained in section 22 of article 1 of the Constitution of this state, an action would lie for mere consequential injuries to real property by reason of the construction and operation of the railroad, where, as in this case, it is conceded that the railroad was carefully and properly constructed and being operated with due and proper care, and that no part of the property has been taken or physically invaded. We have heretofore had occasion to illustrate and apply the conditions and circumstances under which actions for damages arising out of the construction and operation of a railroad may be maintained. In the case of Morris v. O. S. L. R. Co., 36 Utah 14, 102 P. 629, a recovery was permitted upon the theory that the property was damaged within the purview of the constitutional provision referred to. That case in principle cannot be distinguished from the case at bar. In the case of Twenty-Second Corporation, etc., v. O. S. L. R. Co., 36 Utah 238, 103 P. 243, 23 L. R. A. (N. S.) 860, a recovery was denied because the alleged damages did not come within the constitutional provision aforesaid. The recovery in the Morris Case supra, was, however, not permitted upon the ground that the injurious acts complained of constituted a trespass on real property. We are clearly of the opinion that actions like the case of Morris v. O. S. L. R. Co., supra, and one like the case at bar, fall within the provisions of section 2883, which...