Shepherd v. Baltimore

• Decision Date: 08 April 1889
• Citation: 32 L.Ed. 970,130 U.S. 426,9 S.Ct. 598
• Parties: SHEPHERD v. BALTIMORE & O. R. Co
• Court: U.S. Supreme Court

130 U.S. 426

9 S.Ct. 598

32 L.Ed. 970

SHEPHERD v. BALTIMORE & O. R. Co.

April 8, 1889.

[Statement of Case from pages 426-430 intentionally omitted] John W. Herron, for plaintiff in error.

E. J. D. Cross and Hugh L. Bond, Jr., for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The express requirement that every railroad company occupying a street of other public ground, under an agreement with the municipal or other authorities owning or having charge thereof, 'shall be responsible for injuries done thereby to private or public property, lying upon or near to such ground.' leaves little room for construction. The right to recover damages for such injuries is not limited to owners of property immediately upon the street occupied by the track or other structures of the railroad company. If the legislature had intended to restrict the right of action given by the statute to owners of the latter class of property, the words 'or near to' would not have been used. The manifest purpose was to place those whose property was 'near to' any public street thus occupied upon an equality, in respect to the right to sue, with those whose property abutted on the street. In Railroad Co. v. Mowatt, 35 Ohio St. 284, 287, which was an action to recover damages for injuries to private property not immediately upon the street occupied by the railroad track, the court held the limitation of two years prescribed by the statute to be applicable, because the street was occupied under an agreement with the municipal authorities, and because the premises were 'near to' that street. But an adjudication more directly in point is Railway Co. v. Gardner, 45 Ohio St. 309, 317, 13 N. E. Rep. 69, which was made after the decision in the court below of the case now before us. The property there alleged to have been injured was immediately upon the street in which the railroad track was maintained under municipal authority. Referring to Parrot v. Railroad Co., 10 Ohio St. 624, as not controlling the case then before the court, it was said: 'For, whereas the court declares in that case that the owner of such lot has no more right to recover damages of the company than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discomforts, the act in question expressly authorizes an action and recovery for injuries done by laying a track upon any such street or ground to private or public property 'lying upon or near to the street or ground upon which the track is laid.' It seems that, to entitle a property owner to recover for injury to his property, it need not necessarily be situated upon the street occupied by the track. The statute reaches beyond the decision in prescribing a remedy for a party whose property is injured by the location and operation of a railroad track through the street of a municipal corporation. * * * The provision in force at the time of the injury complained of in that case, of which section 3283 is an amendment, created no such remedy for land-owners as we are considering.'

This interpretation of the statute is, in our judgment, the only one justified by its words, although it may sometimes be difficult to determine whether particular property alleged to have been injured by the placing of a railroad track or struc- ture in a public street, is, within the meaning of the statute, 'near to' that street. It is certain, however, that property is 'near to' the street, so as to entitle the owner to avail himself of the remedy given by the statute, if the injury to it is the direct and necessary result of the occupancy of the street by the track or other structures of a railroad company. And an injury for which the company is liable, under the statute, arises when the diminution of the value of the property can be fairly attributed to such occupancy and use of the street. In Grafton v. Railway Co., 21 Fed. Rep. 309, which was an action under this statute for injury done by the obstructions here in question, Mr. Justice MATTHEWS said: ...