Slaughter v. Meridian Light & Railway Co.

• Decision Date: 18 January 1909
• Docket Number: 13,230
• Citation: 95 Miss. 251,48 So. 6
• Parties: MCKIE SLAUGHTER v. MERIDIAN LIGHT & RAILWAY COMPANY
• Court: Mississippi Supreme Court

48 So. 6

95 Miss. 251

MCKIE SLAUGHTER v. MERIDIAN LIGHT & RAILWAY COMPANY

No. 13,230

Supreme Court of Mississippi

January 18, 1909

FROM the chancery court of Lauderdale county, HON. JAMES L MCCASKILL, Chancellor.

Mrs Slaughter, appellant, was complainant in the court below; the light and railway company, appellee, was defendant there. From a final decree in defendant's favor the complainant appealed to the supreme court. The facts are fully stated in the opinions of the court, the one vacated and the final one.

Reversed and remanded.

G. Q Hall, Hall & Jacobson, for appellant.

Whether or not a street-car line operated by electricity imposes per se an additional burden on a street, or public highway is, we submit, a question of no importance and entirely immaterial since the adoption of that provision of the Constitution of 1890, sec. 17, inhibiting the taking or damaging of private property for public use without due compensation first made.

Prior to the use of the words "or damaged" the abutting property owner had no right of action in the absence of an actual "invasion of the property, a trespass upon it and an appropriation of it to public use * * * merely consequential injuries resulting from the loss or impairment of some rights incident to the use or enjoyment, there being no invasion of the property itself, were not covered by the constitutional prohibition." Vicksburg v. Herman, 72 Miss. 214, 16 So. 434.

This court has repeatedly held that railroad companies are liable for such incidental or consequential damage. King v. Vicksburg R. Co., 88 Miss. 456, 42 So. 377; Alabama, etc., R. Co. v. Bloom, 71 Miss. 247, 15 So. 72; Helm v. Turner, 89 Miss. 334, 42 So. 377. Also municipal corporations. Vicksburg v. Herman, supra, Meridian v. Higgins, 81 Miss. 376, 33 So. 1. And so are counties: Rainey v. Hinds County, 78 Miss. 308, 28 So. 875, Warren County v. Rand, 88 Miss. 395, 40 So. 481.

And such are the holdings of the courts of last resort in those states having similiar constitutional or statutory provisions to ours. Sheely v. Kansas City, etc., R. Co, 4 Am. St. Rep. 396; Campbell v. Railroad Co., 9 S.W. 1078.

Mr. Abbott in his excellent work on Municipal Corporations, vol. 3, § 847, says:--

"The abutting owner, however, irrespective of his interest in the adjoining highway, is entitled to compensation for the occupation of that highway by a surface street railway when that use interferes with or destroys the easements which he possesses as an abutting owner in the access to his property and to light and air. These easements, as already stated, are property rights and where an authorized use of a highway impairs or destroys them, compensation can be recovered."

In 43 L. R. A. 554 et seq. is presented a collation of authorities holding street railroads of all kinds to be within the constitutional inhibition as well as other entities both natural and artificial. Pittsburgh, etc., R. Co. v. McCutcheon, 7 A. 146; Chicago R. Co. v. Huzels, 42 N.W. 93; McQuoid v. Portland, 18 Or. 237; Elizabethtown v. Combs, 19 Am. Rep. 67; Dooley Block v. Salt Lake Rapid Transit, 24 L. R. A. 610; Cincinnati St. Railway Co. v. Cumminsville, 10 Ohio St. 523; First Congregational Church v. Milwaukee R., 77 Wis. 158; Wichita Railway Co. v. Smith, 45 Kan. 264.

10 Am. & Eng. Ency. of Law, 1113, announces the rule as follows:--"In those states where consequential damages are provided by constitutional or statutory provisions compensation may be had for injuries to property although no part of the premises is taken."

Upon what predicate may street car companies be regarded as above the law, and as involving a status so unique that damages cannot be predicated of their acts in the absence of actual invasion of the premises of another? No good reason exists.

This court has not seen fit to engraft any such exception. On the contrary, speaking through WOODS, J., it has held that the words "or damage" embrace within their inhibition all those attempting to convert private property to public use, artificial as well as natural persons, municipal and other like corporations alike; and they cover all damages of whatever character." . . .

"The citizen must be held, under this new provision of our fundamental law, to be entitled to due compensation for, not the taking, only, of his property for public use, but for all damages to his property that may result from works for public use. He is now secured in his property, and his use and enjoyment of his propetry. The burden formerly borne by the citizen, resulting from damage done his property by a diminution or destruction of his right to use and enjoy his own, were designed by this new constitutional rule to be placed upon those by whose action the diminution or destruction was wrought. Vicksburg v. Herman, 72 Miss. 215.

Miller & Baskin, for appellee.

The bill alleges that the construction of this car line and the use of it by the cars does not constitute an additional servitude of said street; but even if the bill did not so allege, the question is, does this street car constitute an additional servitude; if it does not, then the appellant has no right to recover damages. We do not know that this identical question has been passed upon by our supreme court, or that we can cite a case from our court on "all fours" with this contention. We do know that in Theobold v. L. N. O. & T. R. Co., 66 Miss. 279, our court has held that a steam railroad constitutes an additional servitude, and has sustained this by cogent reasoning and much authority; but we find this language in a note to said case:

"When the opinion in this case was announced Judge CAMPBELL stated that as the railroad in this case connected distant points and merely passed through the city of Vicksburg, using the street for its track, he concurred in the result; but that in the case of a railroad within a city constructed and used as an ordinary street railway, possibly a different question would be raised, the question not involved by the facts of this case and therefore not decided."

In the case of Hazlehurst v. Mayes, 84 Miss. 11, we find that our court approved the holding that the establishment of a steam railroad upon a street is an additional servitude entitling the abutting owner, in front of whose property the railroad was constructed, to the right of recovering of damages. And the operation of the same rule has been applied to telegraph and telephone companies. Again in the case of Gulf Coast Co. v. Bowers, 80 Miss. 570, an electric light case, in which the court said that this was incidental to the proper use of the streets, and that therefore the abutting owner was held to have been fully compensated when the highway was originally acquired, making this electric light case different from telephone companies, telegraph companies and steam railroad companies, all of which were said to be often public conveniences, but were not incidental to the use of streets and highways, and the enjoyment and use of the streets as such was not increased by the equipment of steam railroads, telegraph and telephone companies. They form no part of the equipment of a public street, but are foreign to its use; and the doctrine is clearly announced in this case that the abutting owner is only entitled to damages when the street has been diverted from its original purpose and an additional servitude imposed thereon; for the reason that it could not be presumed that these steam railroads, telegraph and telephone companies had acquired the right to use the street when it is originally obtained. But the public use is the dominant and controlling interest; the streets may be devoted to any proper use incidental to the public thoroughfare and the adjacent owner must suffer the resulting injury or inconvenience, and, as a illustration, the authorities of a municipality may, when its charter powers permit, dig drains, lay gas pipes or water mains, construct sewers or erect posts and wires for lights, because such things are incidental uses within the contemplated scope of the dedication of the highways to the public use. "Briefly stated, a municipality may, without additional compensation to the abutting owner, place any equipments or appliances in the streets which are necessary, convenient or incidental to the full use and enjoyment as such." This is said to be based on the fundamental principle that the rights of the adjacent owner are subordinate to the public interests, and that as in that case the municipality had the right to establish the electric light wires and posts, the citizen's right to maintain trees upon the highways is subordinate and must yield thereto, the complaint in this case being, as the court knows, that the electric light company had injured or destroyed the trees of the abutting owner. His rights in these trees were subordinate to the right of the city to have one of those improvements which are incidental to urban life.

The question then is whether a street railway falls within the category of an electric light company, and without the category of a steam railroad or a telegraph or telephone company. If it does not constitute an additional servitude then it has the right to occupy any of the streets or highways of the city, where the city has the power to consent for it so to do. In the instant case the bill alleges that the appellee had a franchise for constructing and operating an electric car line in said city, and that in pursuance thereof lines of track had been constructed and cars had been and are now being operated by the trolley system along on the streets and avenues of said city, and that the said appellee conceived the idea of extending its lines to and building upon and operating its cars along said...