Romano v. Yazoo & M.V.R. Co.

• Decision Date: 12 March 1906
• Citation: 40 So. 150,87 Miss. 721
• Parties: SAMUEL R. ROMANO, ADMINISTRATOR, ETC., v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Court: Mississippi Supreme Court

40 So. 150

87 Miss. 721

SAMUEL R. ROMANO, ADMINISTRATOR, ETC., v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

Supreme Court of Mississippi

March 12, 1906

FROM the circuit court of Warren county, HON. OLIVER W. CATCHINGS Judge.

Romano administrator of the estate of Regina Dohler, deceased, the appellant, was plaintiff in the court below; the railroad company, the appellee, was defendant there. The suit was for damages to land, caused by the construction and operation by defendant of a third railroad sidetrack in front of the premises of appellant's intestate, the railroad company having for years rightfully maintained and operated two such tracks. There was a conflict in the evidence as to whether the property was damaged and as to the time when the third track was constructed.

From a verdict and judgment for the defendant the plaintiff appealed to the supreme court.

On the trial the railroad company offered evidence tending to show the enhanced value of the intestate's property for "warehouse purposes" by reason of the building of the track, and the plaintiff moved to exclude the evidence on the ground that it was irrelevant, since the property was not used for warehouse purposes, which motion was overruled, and the evidence allowed to go to the jury.

The court refused the following instructions asked by the plaintiff:

"4. The court instructs the jury that, if they believe from the evidence in the case that the defendant constructed and operated three tracks on Levee or Water street in front of plaintiff's said property, building and operating the said third track within six years next before the filing of this suit, and thereby damaged it, then they must find for the plaintiff and assess damages at such sum as the evidence in the case shows plaintiff has sustained.

"5. The court instructs the jury that, if they believe from the evidence in the case that the placing of said third track, or switch, in front of plaintiff's property on Levee street damaged the property for the purposes and uses to which it was put, they cannot offset said damage by the enhanced value, if any, of said property for warehouse purposes by placing of said third track, or switch, in front of plaintiff's property."

The court gave the following instructions asked by the defendant:

"2. The court instructs the jury, for the defendant, that, if they believe from the evidence that plaintiff is entitled to recover, then they can only award damages for any injury caused by the switch track running into Lever Bros.' oil mill, and must not take into consideration any damage from the other two tracks of defendant, as defendant has bought and paid for the right to construct and operate said two tracks.

"3. The court instructs the jury, for the defendant, that, if they believe from the evidence that the switch in question was constructed by defendant or the Louisville, New Orleans &amp Texas Railway Company in yards previous to January 11, 1901 and has been used and operated by said Louisville, New Orleans & Texas Railway Company and this defendant since that time and up to the bringing of this action, then they will find a verdict for defendant.

"4. The court instructs the jury, for the defendant, that, unless they believe from the evidence that the property in question has been damaged by the building of the switch in question they will find a verdict for defendant."

Reversed and remanded.

Brunini & Hirsh, and Anderson & Voller, for appellant.

The lower court erroneously permitted the appellee's witness, Fitzhugh, over the objection of appellant, to testify that the property in question was enhanced in value for warehouse purposes by the construction of said switch. Our contention is that the true test is to take and consider the property as it was at the time of the construction of the switch, and that it is for neither the witness nor the jury to speculate as to what its value might be if used for some other purpose than that for which it was being then used.

In the case of Birch v. Lake Roland Elev. Ry. Co., 34 A. 1013, the supreme court of Maryland say:

"The second proposition contained in the plaintiff's prayer, to the effect that the plaintiff was entitled to recover for the diminution in the value of his property as and for a livery stable, is undoubtedly correct. The property was originally built for such purpose, and in its existing condition was available for that purpose only. He was, therefore, entitled to claim such damages as the evidence showed that he had sustained in the diminished value of his property for that purpose, occasioned by the construction of the road." 4 Suth. on Dam. (3d ed.), 3103; Birch v. Lake Roland Elev. Ry. Co., supra; Johnson v. Railway Co., 66 N.E. 204.

When real estate is used in carrying on a business, the damage to be assessed for the diminution in value of the real estate is estimated in reference to the use to which it is adapted, and not for loss in the business. Maynard v. Northampton, 157 Mass. 218 (31 N.E. 1062); Edmonds v. Boston, 108 Mass. 535; Williams v. Con, 168 Mass. 364 (47 N.E. 115); N. Y., N. H. & H. R. R. R. Co. v. Blacker, 178 Mass. 386 (59 N.E. 1020); Boston Belting Co. v. Boston, 67 N.E. 428; City of Denver v. Boyer, 2 P. 6; Railroad v. Ward, 18 N.E. 828; Railway v. Bourne, 16 P. 839; Coal Co. v. Chicago, 26 F. 415; City of New Britain v. Sargent, 42 Conn. 137.

In the case of Railroad Co. v. Bloom, 71 Miss. 251 (S.C., 15 So. 72), this court substantially, though not in words, held to the same doctrine. Bloom was allowed to recover for damages occasioned to his property, considering the purposes for which it was being used at the time.

Instruction No. 4 given by the court for appellee should not have been given, for the reason that appellant was in any attitude of the case entitled to nominal damages if the jury believed that the switch had been constructed within six years next before the filing of the declaration in this suit. Let us further examine into this proposition.

This instruction given for appellee absolutely takes from the jury the question of nominal damages, which are always recoverable for the positive and wrongful invasion of another's property. 1 Suth. on Dam. (3d ed.), secs. 9-11.

"For every trespass to property, whether real or personal, there may be...