Raht v. Southern Ry. Co.

• Decision Date: 05 October 1897
• Citation: 50 S.W. 72
• Parties: RAHT et al. v. SOUTHERN RY. CO. et al.
• Court: Tennessee Supreme Court

Page 72

50 S.W. 72

RAHT et al. v. SOUTHERN RY. CO. et al.

Court of Chancery Appeals of Tennessee.

October 5, 1897.

Appeal from chancery court, Bradley county; T. M. McConnell, Chancellor.

Bill by W. E. Raht and another against the Southern Railway Company and another. There was a decree for complainants, and defendants appeal. Affirmed, and petition for rehearing dismissed.

Mayfield, Son & Aiken and J. C. Ramsey, for Southern Ry. Co. Pritchard & Sizer, for defendants.

BARTON, J.

This is a bill filed to enforce rights claimed by the complainants in a certain street in the city of Cleveland, which they allege existed, on which they claim to own abutting property, and which they aver the defendant railway company has been unlawfully obstructing. The existence of the street is denied, and the right of complainants to the relief sought is resisted by the defendant railway company. It will be proper and necessary to give a brief outline of the bill, and of the answer of the defendants.

It is stated that the complainants are the owners of a tract of land that contains some 548 acres, lying partly within and partly without the corporate limits of the city of Cleveland, Tenn., which they inherited, and hold by mesne conveyances from other heirs, from Julius E. Raht, deceased, and that, among the land so owned, several town lots are within the corporate limits of the city of Cleveland; that on these lots and tract of land, which are fully set out and described in the bill, their ancestor and themselves had erected valuable improvements; that at the time their ancestor, J. E. Raht, purchased the land in question, and for many years thereafter, this land abutted on the west on a street running along the western boundary of said land, and adjoining on the east the right of way of the defendant railway company, from Inman street to Mill street, in the city of Cleveland; that this street or highway was a part and continuation of Mill street, which had existed prior to the construction of the tracks of the railroad company, and for many years thereafter, being crossed by the said defendant railway company; that the defendant railway company had encroached upon and obstructed this street or streets adjacent to said tract of land, and connecting it with the business part of the town, both at the point where Mill street crossed or was crossed by the tracks of the defendant railway company, and at different points along the street between the point of crossing and its juncture with what was known as "Inman Street." A plat and description of the alleged street and adjoining premises was filed as an exhibit to and part of the bill, and is adopted as a part of this opinion.

It was alleged that the defendant railway company had failed and refused to keep up the crossing, and had erected and created various obstructions in and along the line of the street between the crossing and Inman street; that it blocked the street with its cars, and kept and maintained various obstructions in this street, using it as a dumping ground and place of deposit for cross-ties, lumber, and débris of every character; that access from the adjoining property of the complainants to Inman street was practically cut off, and the Mill street crossing was obstructed so as to render it practically of no use to the complainants and the public, to the great damage and inconvenience of complainants as adjoining property owners, and so as to practically cut them off from the business portion of town, and to deprive them of their right of access to the business portion of the town, and ingress and egress over the street, as claimed, to and from their property. In the bill it was also alleged that the mayor and aldermen of the city of Cleveland, who are made parties to the bill, had neglected to enforce the rights of the municipality, the public, and the complainants in and to this street, and had allowed the crossing and the street to be kept in an obstructed and impassable condition. The prayer of the bill was that the parties named as such be made defendants by proper process; that the rights of the complainants and the public in and to the portion of the street described be decreed and declared; that the crossings at Mill and Inman streets, and that portion of the street running from Mill street to Inman street, described, be opened and kept open by the decree of the court; that all obstructions in and along the portions of the street described be decreed to be nuisances, and abated and removed; and that the crossing at Mill street be required to be placed and kept in suitable condition as a public and private thoroughfare; and that the defendant

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the city of Cleveland be required, by mandamus or decree of the court, to take the rights of the public in said ways, and to maintain them as public streets; and that defendants be enjoined from encroaching upon or obstructing these ways and streets, and required by mandatory injunction to remove all unreasonable and unnecessary interferences of the public right and the rights of the complainants, and be required to erect and maintain suitable ways and crossings, and to do all acts necessary for the preservation and maintenance of said streets and crossings as public streets and highways.

The defendant the city of Cleveland answered this bill; admitted that it was a municipal corporation, having charge of the streets, etc., of the city of Cleveland; that the complainants were the owners of the land mentioned in the bill; that the land contained the valuable improvements, as stated; that the defendant the Southern Railway Company had obstructed, and continued to obstruct, the Mill street crossing; that the complainants had applied to it (the respondent city of Cleveland) for relief, but that respondent had deemed it best, because of the existence of the controversy, for the complainants to apply to the court for relief; that respondent did not believe that the defendant railway company had any legal right to occupy and obstruct Mill street, and that the same should be opened to the public; averred the street and crossings were a public street and crossings; that the respondent city desired that the crossings be opened and kept open for the public use; that respondent had applied to the defendant railway company for relief, but had been unable to get the street opened.

The city of Cleveland subsequently filed a cross bill in the case, in effect asserting the same rights sought to be asserted in the original bill; but for some reasons, not disclosed in the record, it afterwards withdrew its cross bill, and dismissed the same, paying the cost; but the answer as filed was allowed to stand.

The defendant railway company filed an answer, in which it admitted the ownership of the land as described by the complainants, but denied that there was any street running along its right of way on the east side of these tracks, and between the complainants' property and the railroad at the place designated. In the answer it was said that, at the place designated, complainants' ancestor, J. E. Raht, moved back the fence on the line between his land and the land of the defendant, a sufficient distance to allow the passage of wagons, but that the same was only a private way, and was not at the time of the filing of the answer, and had never been, a street or public thoroughfare. It is admitted that there were improvements on the property of the complainants; denied that it had obstructed any public streets or highways adjacent to the Raht estate, and connecting it with the business part of the town, as charged in the bill; and, in support of this denial, averred that there was no street between defendant's right of way and the Raht estate, and that there never had been a street at that place; that the municipal authorities of Cleveland had never opened a street at that place, and never recognized any street there; that the defendant never encroached upon or obstructed either street or road at that place; that the defendant owned in fee simple all the land on the east side of its tracks upon which it had placed any obstructions; and averred that it had only exercised its legal rights over its own property; that there was a private passway between defendant's lands and the Raht estate, wide enough for wagons and teams, but that it was not a public street, and never had been, and that this had never been encroached upon or obstructed by the defendant; that originally the line of J. E. Raht's land had joined the line of the defendant's land, but that Raht had set his fence back far from the defendant's line to allow the passage of wagons for his own convenience, but that said way had never been adopted by either the county or municipality as a street, and that upon this the defendant had never encroached. The answer further states that many years ago before the complainants' ancestor, J. E. Raht, had become the owner of the land designated in the bill as the "Raht Estate," and a short time thereafter, there was a road crossing the railroad at the point, designated as "Mill Street Crossing," and that said road extended on eastward through the lands of the Raht estate until it connected with the public road known as the "Spring Place Road," running on the south side of the residence and building of said estate; that the same extended from the town entirely through the cleared land adjoining the residence and improvements, but that, soon after Raht purchased the property, he had the road closed and discontinued from the point where Mill street crossed Edward street, which it was averred was some distance from and west of the defendant's tracks; and that, about the same time, he set his fence back on the west side of said estate, far enough to allow his wagons and teams to pass along the east side of the defendant's right of way, as before shown, to Inman street; and...