Robertson v. New Orleans & G. N. R. Co.

• Decision Date: 09 June 1930
• Docket Number: 28484
• Parties: ROBERTSON v. NEW ORLEANS & G. N. R. CO
• Court: Mississippi Supreme Court

129 So. 100

158 Miss. 24

ROBERTSON v. NEW ORLEANS & G. N. R. CO

No. 28484

Supreme Court of Mississippi

June 9, 1930

APPEAL from circuit court of Hinds county, First district HON. W. H POTTER, Judge.

(In Banc.)

1 RAILROADS.

That private railroad facilities were essentially adjunct to terminals, location of which was authorized by Interstate Commerce Commission, was no defense to action for damages for nuisance.

2. RAILROADS. That right of way deed contained provision releasing railroad from damages to abutting property was no defense to action by nearby lot owner against railroad for damages for nuisance.

The provision referred to released railroad, its successors and assigns, from all damages to abutting property from the construction and operation of railroad over land conveyed and over streets of the city. The action was brought by one whose property was separated from right of way at one point only by width of street, and the complaint alleged that railroad company had constructed and was maintaining railroad tracks private switch tracks, workshop, terminals, place for refueling, firing, and watering, and place for switching storing, and keeping of engines, coaches, and cars, and alleged that plaintiff's residence and property was damaged by vibrations, etc.

3 RAILROADS.

Provision in right of way deed releasing railroad from damages to abutting property covered railroad's normal public operations only.

4. RAILROADS.

Railroad company stands on question of private nuisances upon substantially same plane as others maintaining such nuisances.

5. RAILROADS.

Railroad, claimed to be maintaining nuisance, is not liable for consequential damages resulting from normal operations.

6. RAILROADS. Owner of property near right of way alleging railroad was maintaining private switch tracks, workshops, etc., and causing noises, soot, vibrations, etc., held to make case of private nuisance.

The pleadings alleged that plaintiff's property at one place was separated from right of way only by width of street, and that railroad was maintaining private switch tracks, yards, railroad workshops, terminals, place for refueling, firing, and water, and place for switching, storing, and keeping of engines, coaches, and cars, and that plaintiff and family were constantly annoyed by noises, soot, smoke, and cinders, and trash and filth from parking of camp cars and placing for long periods of cars containing animals, fertilizer, and other filth, and that plaintiff's house was damaged by vibrations caused by operation of locomotives and cars, and rendered unfit for residential property.

7. RAILROADS.

Recovery against railroad maintaining private switch tracks, workshops, terminals, etc., based upon private nuisance, is not confined strictly to abutting property.

8. APPEAL AND ERROR.

Supreme Court would not decide question of measure of damages not passed on by court of original jurisdiction.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district HON. W. H. POTTER, Judge.

Action by G. C. Robertson, Jr., against the New Orleans & Great Northern Railroad Company. From the judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Robertson & Campbell, of Jackson, for appellant.

Consequential damages to adjacent or abutting property thereby taken and damaged for public use may be recovered in an action at law, although compensation has already been made for the property physically taken in a prior eminent domain proceeding.

Alabama & Vicksburg Railroad Company v. King (Miss.), 47 So. 857; Alabama & Vicksburg, R. Co. v. Bloom (Miss.), 15 So. 72; Pennsylvania R. R. Co. v. Miller, 132 U.S. 75, 33 L.Ed. 267; Baltimore & Potomac R. R. Company v. First Baptist Church, 108 U.S. 317, 27 L.Ed. 739; Richards v. Washington Terminal Company, 233 U.S. 546, 58 L.Ed. 1088; Chicago Great Western R. R. Co. v. First Methodist Church, 50 L. R. A. 488, 42 C. C. A. 178, 102 F. 85; Note to Board of County Commissioners of Logan County v. Adler, 69 Colo. 290; 20 A. L. R. 512, Ann. At 516.

A release of damages contained in a deed has the same effect as the assessment and payment of damages in an eminent domain proceeding under the statute as to a release of future damages to abutting or adjacent property.

Lewis on Eminent Domain (3 Ed.), secs. 474, 475 and 822; Eaton v. Boston & Maine R. R. Co., 51 N.H. 504, 12 Am. Rep. 147; Uncanoovanch Railroad Company v. Orr, 67 N.H. 541, 41 A. 665; Pamplin v. Norfolk & Western Railroad Co., 98 S.E. 51, 24 Va. 252; Tinker v. City of Rockford, 137 Ill. 123, 28 N.E. 573; Perrine v. Pennsylvania Railroad Company, 61 A. 87, 72 N.J.L. 398, affirmed 62 A. 702.

A release from liability for damages to adjacent abutting property contained in a deed should be construed so as to give effect to the intention of the parties and so as to include only the matters within the contemplation of the parties at the time of its execution.

34 Cyc. 1090, 1092; 23 R. C. L. 397, sec. 26; Crum v. Pennsylvania Railroad Company, 75 A. 183, 226 P. 151.

A release from liability for all damages resulting to adjacent or abutting property from the construction and operation of railroad's works and structures on a right-of-way granted in the deed does not apply to and does not release from liability because of damages caused from the construction and operation of the works and structures upon lands other than those included in the conveyance.

Lewis on Eminent Domain (3 Ed.), 822; Gulf C. & S. F. Ry. Co. v. Thornton (Tex.), 109 S.W. 220; Perrin v. Pennsylvania Railroad Company, 61 A. 87, 272 N.J.L. 398, affirmed in 62 A. 702; Crum v. Pennsylvania Railroad Company, 75 A. 183, 226 Pa. 151; Pamphlin v. Norfolk & Western Railroad Co., 98 S.E. 51, 24 Va. 252; Tinker v. City of Rockford, 137 Ill. 123, 28 N.E. 573; Payne v. Kansas City Railroad Co., 49 F. 546 (C. C. A.) Ark.

A release from liability for all damages resulting to adjacent abutting property from the construction and operation of railroad works and structures contained in a deed to a right-of-way does not release such railroad company from liability for such damage to adjacent or abutting property resulting from acts committed upon or works or structures erected upon the property conveyed in the instrument, but of such different character, nature and kind as to constitute an additional servitude as to such adjacent or abutting property.

Williams v. Meridian Light & Railway Co. (Miss.), 69 So. 596; Lackey v. St. Louis, etc., Railroad Co. (Miss.), 48, So. 238; Y. & M. V. R. R. Co. v. Smith, 99 Miss. 44, 43 So. 611; Connors v. Y. & M. V. R. R. Co. (Miss.), 38 So. 320; Robinson v. Vicksburg, 99 Miss. 439, 54 So. 858; Lewis on Eminent Domain (3 Ed.), 179 and 221; 22 R. C. L. 896, 897, sec. 141; Alabama, etc., Railroad Co. v. Wilson (Ala.), 55 So. 933; Payne v. Kansas City Railroad Co. (C. C. A. Ark.), 49 F. 546; Gulf C. & S. F. Railroad Co. v. Thornton (Texas), 109 S.W. 220; Missouri, etc., Railroad Co. v. Calkins (Texas), 79 S.W. 852; Missouri K. & T. Railroad Co. v. Anderson (Texas), 81 S.W. 781, 36 Tex. Civ. App. 121; Chattahoochee Valley Railroad Co. v. Bass, 70 S.E. 683, 9 Ga.App. 683; Highway Commrs. of Ecorse Tp. v. Wabash Railroad Company, 111 N.W. 1090, 148 Mich. 436; Stephens v. New York Railroad Company, 67 N.E. 119, 157 N.Y. 72, affirmed in 70 N.Y.S. 1149.

Having certificate of convenience and necessity of the Interstate Commerce Commission could not release appellee from or exempt it from liability for damages caused by the creation and maintenance of a private nuisance as alleged in the declaration herein, because:

A. Under the express provisions of the Transportation Act the Interstate Commerce Commission has no jurisdiction of the construction or abandonment of spur, industrial, team, switching or side tracks located wholly within one state, which are not operated as a part or parts of a general steam railroad system of transportation.

Sec. 1, par. 22, Transportation Act; Title 49 U.S.C. A., page 133; Western & A. R. Company v. Georgia Public Service Commission, 267 U.S. 493, 69 L.Ed. 753.

The Interstate Commerce Commission has been held to be an administrative and not a judicial body and its acts cannot, therefore, be held to constitute due process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States, or to be in lieu of condemnation proceeding in eminent domain.

Interstate Commerce Commission v. Brinson, 154 U.S. 447, 38 L.Ed. 1047; Spiller v. Atchison T. & S. F. Company, 253 U.S. 117, 64 L.Ed. 810.

Any public authority granted a railroad company by congress, any state legislature or the Interstate Commerce Commission is accompanied with the implied qualification that its property shall not be used in disregard of the private rights of others with immunity for their invasion and is no defense to an action for damages for the creation and maintenance of a private nuisance.

Alabama & Vicksburg R. R. Company v. Bloom (Miss.), 15 So 72; King v. Vicksburg Railway & Light Co. (Miss.), 42 So. 204; Alabama & Vicksburg Railroad Co. v. King (Miss.), 47 So. 857; Dean v. Southern Railway in Mississippi, 73 So. 55; Baltimore & Potomac Railroad Co. v. First Baptist Church, 108 U.S. 317, 27 L.Ed. 739; Chicago Great Western Railroad Company v. First Methodist Episcopal Church, 50 L. R. A. 488, 42 C. C. A. 178, 102 F. 85; Richards v. Washington Terminal Company, 233 U.S. 546, 58 L.Ed. 1088; 10 R. C. L., page 228, Title Eminent Domain, sec. 192, 20 R. C. L. 454, 46 C. J., sec. 42, page 674; 46 C. J., sec. 256, page 722; Southern Railway Co. v. D. A. Fisher, 140 Tenn. 428, 205 S.W. 126, 6 A. L. R. 717; Matthais v. Minneapolis, etc., Railroad Co., 125 Minn. 224, 146...