Powell v. Seaboard Air Line Ry. Co.

• Decision Date: 15 October 1919
• Docket Number: 253.
• Parties: POWELL ET AL. v. SEABOARD AIR LINE RY. CO. ET AL.
• Court: North Carolina Supreme Court

100 S.E. 424

178 N.C. 243

POWELL ET AL. v. SEABOARD AIR LINE RY. CO. ET AL.

No. 253.

Supreme Court of North Carolina

October 15, 1919

Appeal from Superior Court, Wake County; Allen, Judge.

Action by Mrs. Jennie S. Powell and others against the Seaboard Air Line Railway Company, the Norfolk Southern Railroad Company and the City of Raleigh. From a judgment for plaintiffs defendant Seaboard Air Line Railway Company appeals. No error.

A city government, both under its police powers and Revisal 1905, §§ 2569-2700, can require railroads to construct bridges along streets running over their tracks.

The action is to recover damages alleged to have been caused to the lands of plaintiffs, a house and lot, in Raleigh, N. C by the construction of a concrete bridge on Hillsboro street in said city, over the tracks of the railroad companies raising the approaches to said bridge, to the injury of plaintiffs' lot abutting on the street. During the progress of the cause a nonsuit was as to the Norfolk Southern Railroad Company and the city of Raleigh, and the issues were determined as between plaintiffs, owners of the lot, and the Seaboard Air Line Railway Company; liability being resisted chiefly on the ground that the bridge in question had been constructed by the railroad pursuant to an ordinance and requirement of the Raleigh city government.

On issues submitted, the jury rendered the following verdict:

(1) Are the parties whose names are set forth in the amended complaint the owners of the property alleged to have been damaged? A. Yes.

(2) Are T. C. Powell and R. H. Merritt the duly appointed and qualified executors of the will of Jennie S. Powell, as alleged in the complaint? A. Yes.

(3) Are the parties named in the amended complaint the devisees in the will of Jennie S. Powell, as alleged? A. Yes.

(4) Was the defendant Seaboard Air Line Railway Company required by the city of Raleigh to construct a bridge over its tracks on Hillsboro street? A. Yes.

(5) Did the defendant Seaboard Air Line Railway Company construct the bridge according to plans approved by the board of aldermen of the city of Raleigh? A. Yes.

(6) Did the Seaboard Air Line Railway Company, in constructing the bridge over its tracks on Hillsboro street, of its own accord increase or cause to be increased the grade of said street abutting upon the land described in the complaint? A. Yes.

(7) Did the defendant Seaboard Air Line Railway Company, in building said bridge, increase or cause to be increased the grade of said street for the benefit of said Seaboard Air Line Railway Company? A. Yes.

(8) Was the land (house and lot) described in the complaint damaged by reason of the building of said bridge and the alleged increase in the grade of the street in front of said land, as alleged in the complaint? A. Yes.

(9) If so, what damages did plaintiffs sustain as a consequence thereof? A. Three thousand dollars ($3,000).

Judgment on the verdict for plaintiffs, and said defendant Seaboard Company appealed, assigning errors.

Murray Allen, of Raleigh, for appellant.

Jones & Bailey, of Raleigh, for appellees.

HOKE J.

The right of the city government, both under its police powers and the several statutes applicable, to require railroads to construct bridges along streets running over their tracks, is fully established in this jurisdiction, and is recognized in well-considered cases elsewhere. Railroad v. Goldsboro, 155 N.C. 356, 71 S.E. 514; State ex rel. City of Minneapolis v. St. Paul, M. & M. R. Co., 98 Minn. 380, 108 N.W. 261, 28 L. R. A. (N. S.) 298, 120 Am. St. Rep. 581, 8 Ann. Cas. 1047; Cleveland v. City Council of Augusta, 102 Ga. 233, 29 S.E. 584, 43 L. R. A. 638; Railroad v. Duluth, 208 U.S. 583, 28 S.Ct. 341, 52 L.Ed. 630; 3 Elliott on Railroads (2d Ed.) § 1092; Revisal, §§ 2569-2700, etc. And there is high authority for the position that, when such a bridge has been constructed pursuant to the city's requirement, and the bridge itself, or the necessary and proper approaches thereto, "invade the proprietary rights of an abutting owner, causing material injury to the same, recovery may be had by such owner against the company"--this for the reason, among others, that the railroad acquires and holds its right to pass under public streets subject to all reasonable orders of this kind; and when they are obeyed, and the structure is completed, or while it is being built the under-taking is considered as being in the exercise of its chartered rights and duties, and so becomes the act of the company for which it may be properly held accountable. Burritt v. City of New Haven, 42 Conn. 174; English, Treas., v. New Haven & Northampton Co., 32 Conn. 240; Baltimore & Ohio R. R. v. Kane and Wife, 124 Md. 231, 92 A. 532.

In this connection it may be well to note that under the law prevailing in this state an invasion of this kind, when wrongfully made, constitutes a taking within the meaning and application of the principles of eminent domain, and cannot be lawfully insisted upon, except on compensation duly made to the owner. Caveness v. Railroad, 172 N.C. 305, 90 S.E. 244.

While we are disposed to approve the position above stated, it is not necessary for appellees to rely upon it in order to sustain the recovery had by them in this instance, as the jury, under a charge free from reversible error, have determined that the raising of the grade of the Hillsboro bridge was done by the company of its own motion and for its own benefit. See verdict on sixth and seventh issues. A perusal of the record will show that, because the old wooden bridge had become "rotten and unsafe," the city ordinance required the company to substitute a steel or concrete bridge without specifications as to any elevation of grade, and that while the plans were approved by the city, the elevation which worked the injury complained of was done, as stated, for its own benefit; there being facts in evidence permitting such inference and that it was done for the reason that the company thereby procured a greater clearance from the top of the tracks to the bottom floor of the bridge, rendering the operation of their trains less liable to accidents and injuries, the evidence on part of plaintiff being that the additional clearance amounted to as much as 2 feet and 7 inches. And where this is true--that is, where the road has constructed the bridge so as to cause injury to an abutting owner of its own motion or for its own benefit--all of the authorities, so far as examined, concur in the ruling that the company may be held liable, notwithstanding it has acted under plans submitted to the municipal board and approved by them. Bennett v. R. R., 170 N.C. 389, 87 S.E. 133, L. R. A. 1916D, 1074; Brown v. Electric Co., 138 N.C. 534, 51 S.E. 62, 69 L. R. A. 631, 107 Am. St. Rep. 554; White v. R. R., 113 N.C. 610, 18 S.E. 330, 22 L. R. A. 627, 37 Am. St. Rep. 639; Midland Co. v. Williams, 92 Ala. 277, 9 So. 203; Shrader v. Cleveland & City Ry., 242 Ill. 227, 89 N.E. 997, reported also with an instructive note in 26 L. R. A. (N. S.) 226. In this last publication the general principle referred to is stated in the first headnote as follows:

(1) "A railroad company is, under a constitutional provision requiring payment of damages for property injured for public use, liable for injury to property abutting on the street, by the construction of a viaduct, under authority of the municipality, to carry a street over its tracks which intersect it, if the work is done for its benefit, to enable it to lay its tracks through the municipality."

While it is fully recognized here and elsewhere that a municipal corporation...