Porter v. North Missouri R.R. Co.
| Decision Date | 31 October 1862 |
| Parties | ERASTUS PORTER, Defendant in Error, v. THE NORTH MISSOURI RAILROAD COMPANY, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to St. Charles Circuit Court.
This cause is brought here on a writ of error from a judgment of the Circuit Court of St. Charles county, on an action to recover damages against defendant for using the street in front of plaintiff's lot in the town of St. Charles as a railroad track.
Plaintiff in his petition stated that he was owner of the lot; that he had a large brick dwelling-house and other improvements on said lot; defendant constructed its railroad track along Main street in front of plaintiff's lot to use the same, whereby the street was greatly obstructed; that prior to said construction of defendant said street was a public highway in said city; that by reason of acts of defendant the property of plaintiff has been greatly lessened in value, and he put to great trouble and inconvenience in going to and returning from his said house and lot, to his damage in the sum of one thousand dollars.
The defendant sets up as a defence:
The court refused evidence offered to show that improvements made by defendant enhanced the value of the property.
Plaintiff then offered the following instructions, which were granted, and excepted to by the defendant:
1. That if they (the jury) believe from the evidence that the property of the plaintiff has been injured in value by reason of the acts of defendant laying the track of the road as it was laid, and by running cars upon the track and leaving them standing upon the track in front of his dwelling-house, or otherwise obstructing the street in front of his property, or that plaintiff was put to trouble and inconvenience or annoyance by the acts of the defendant aforesaid, they must find for the plaintiff such damage as the evidence shows the plaintiff has sustained.
2. In estimating the damage sustained by plaintiff on account of the acts of defendant aforesaid, the jury is not authorized to set off against such damages the advantages to the plaintiff in the improved value of his property consequent upon the building of the railroad which are common to the owners of other property in the vicinity of the road.
3. If the jury believe that the plaintiff has sustained damages by reason of the acts of the defendant as set out in the foregoing instructions, then the permission of the city council of St. Charles to defendant to lay the track of the road along Main street will of itself constitute no defence for the injury done by the defendant.
The defendant then offered the following instructions, of which the court gave the second, third and fourth, and refused the first and fifth:
1. If the jury find from the evidence that the city council of the city of St. Charles granted the right of way to defendant to run the North Missouri railroad along Main street in said city, and they further find that said defendant, in laying their track along said street and in running their cars over said track, committed the grievances complained of, and that in so doing the defendant did no injury to the plaintiff or his property, other than that which necessarily resulted from a prudent, careful and proper use of said grant of said right of way, then there should be a verdict for the defendant.
2. The record of the city council, given in evidence by the defendant, (if true and genuine,) is sufficient to show the grant of the right of way from said city council to said company.
3. The plaintiff cannot recover damages for injury done to his property by the acts of the defendant unless the property was by said acts lessened in value.
4. No damages of any kind can be recovered by plaintiff for any act done by defendant since the commencement of this suit. No damages can be recovered for permanent injury to said property, only for such as accrued before the suit commenced.
5. In estimating the damages, if any, sustained by plaintiff, the jury will take into consideration all the circumstances and all the necessary and direct results of the acts of defendant which are complained of by plaintiff and proven to the satisfaction of the jury; and unless it appears, upon such a review of all the facts, that the property of the plaintiff has decreased in value in consequence thereof, then the plaintiff is not entitled to recover anything having reference to the value of the said property.
The case was submitted to the jury and they found a verdict for the plaintiff for the sum of $664.
Defendant then filed his motion for a new trial and in arrest of judgment; both overruled, and the cause brought up by writ of error.Holmes, Wickham & Lewis, for plaintiff in error.
I. The ordinary use of a public street by a railroad merely for the passage of trains, whether driven by horse power or by steam power, without any other obstructions or permanent erections than the track built thereon, and not materially impairing the private right of way of the owner of an adjoining lot, whether his ownership of the ground extends to the centre line of the street or not, does not entitle such owner to compensation as for private property taken for public use.
To the contrary, Redfield on Railw. 2 ed. § 76 and note 1, cites Williams v. Nat. Br. Plk. R. Co. 21 Mo. 580, and Williamson v. N. Y. Central R. Co. 16 N. Y. 97; but in these cases there were obstructions materially impairing the private right of way--in the latter case amounting almost to an exclusive occupation of the street.
II. The Legislature had the power to grant and did grant to the appellant the privilege of laying its railroad track on the street in front of appellee's lot. (Sec. 11, Act to incorporate N. M. R. R. Co., Session Acts of 1851, p. 486; In re Phila. & Trenton R. R. Co. 6 Whart. 45; Commonwealth v. Erie & N. E. R. R. Co. 27 Pa. Rep. 354; Newburyport Turnpike Co. v. Eastern R. R. 23 Pick. 328; Drake v. Hudson River R. R. Co. 7 Barb. 547; Corey v. Buffalo, C. & N. Y. R. R. 23 Barb. 489; Hatch v. Vt. Central R. R. 25 Vt. 60-61; Richardson v. Vt. Central R. R. 25 Vt. 425.)
III. The appellant is not liable as for a tort for acts for which she is authorized by law to do, and whilst in the reasonable exercise of her rights and conducting her lawful business without malice, negligence or unskilfulness, she is not responsible for any damage which may be occasioned to others thereby.
IV. The appellant's charter does not require damages to be paid for lands which are injuriously affected by the construction of the road, and therefore she is not liable for consequential damages to lands not taken for the railroad. (Hatch v. Vt. Central R. R. 25 Vt. 60; Corey v. Buffalo, C. & N. Y. R. R. 23 Barb. 489; Gould v. Hudson River R. R. 2 Selden, 535; Whittier v. Portland & K. R. R. 38 Me. 29.)
V. The city of St. Charles having the power to alter and abolish streets, &c., under her charter, granted the appellant the right of way through Main street in front of appellant's lot; and if any one is liable to him for damages arising from the use of the street complained of, it is the city of St. Charles, for she is expressly declared by her charter to be liable to individuals for all damages arising from alterations or improvement in streets by virtue of the powers conferred on her. (Art. 6, § 2 of city charter; Sargent v. O. & M. R. R. 1 Handy, 61-62; Hatch v. Vt. Central R. R. 25 Vt. 60.)
VI. The appellee is not the owner of the soil to the middle of the street; but his lot is ager limitatus, and is confined to the limits of his grant, which is bounded by Main street; and if appellant has constructed her road along said street under proper legal authority, and appellee has suffered damage in consequence of its proper construction, it is damnum absque injuria. The first instruction asked by defendant was therefore improperly refused.
Whether the soil of the street belongs to the adjacent lot owners or to the public is a fact to be determined by the circumstances of each case. In the case of county roads, it is the presumption of law that it does belong to them, (Williams v. N. B. Plank Road, 21 Mo. 582), but streets in a city stand on different considerations. The appellee bounds his lot by Main street of St. Charles, an old Spanish and French village, and must therefore be confined to the limits of his grant, and the soil of the street will not be presumed to be his in the...
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