St. Louis & S. F. R. Co. v. Ledbetter

• Decision Date: 31 May 1921
• Docket Number: Case Number: 9895
• Parties: ST. LOUIS & S. F. R. CO. et al. v. LEDBETTER et al.
• Court: Oklahoma Supreme Court

1921 OK 205

200 P. 701

83 Okla. 78

ST. LOUIS & S. F. R. CO. et al. v. LEDBETTER et al.

Case Number: 9895

Supreme Court of Oklahoma

Decided: May 31, 1921

Syllabus

¶0 1. Eminent Domain--Damages to Abutting Property from Location of Roundhouse. etc.--Right to Recover -- Constitutional Provision. Where the owner of an abutting tract is damaged by the location of switch yards, roundhouse, coal chutes, pits, etc., his right of recovery is not governed by the law relating to recovery for damages caused by a nuisance, but is governed by the law of compensation for damages sustained by the location and necessary operation of a public service or utility. The constitutional provision that "private property shall not be taken or damaged for public use without just compensation" means that the public shall neither take nor damage private property for public use without justly compensating the owner thereof.

2. Same. The above provision is made in contemplation of the essential right of the public to take private property for public use when it becomes necessary, and to use it in such manner and for such purpose as the public necessity may require, although the manner of its use and the purpose for which it is used may damage abutting property, but the owner thereof is nevertheless entitled to compensation for the damage actually sustained.

3. Same--Verdict for Damages--Sufficiency of Evidence. Where the evidence is sufficient to warrant the conclusion that property was worth $ 7,000 before the location of switch yards, roundhouse, coal chutes, etc., abutting thereto, and was worth but $ 4,000 afterward, and that the operation of said facilities had caused the depreciation, a verdict for $ 1,500 will not be set aside as not being supported by the evidence.

4. Pleading--Amendment--Statute. Section 4790, Revised Laws 1910, provides: "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform, in any respect, to the provisions of this Code, the court may permit the same to be made conformable thereto by amendment."

5. Same--Changing Name of Railroad Defendant. Under the foregoing statute it was not error for the trial court to permit plaintiff to amend petition by substituting the name "St. Louis-San Francisco Railway Co." for the name "St. Louis & San Francisco Railroad Co.," it appearing that the regular service agent of the identical line alleged to have caused the damage had been duly served with summons, and that the regular attorneys for said identical line appeared and answered and defended against the action, and also appearing that no injustice was done by the amendment.

6. Trial--Instructions--Refusal of Requests. It is not error to refuse to give instructions which do not state the law applicable to the facts in a case, nor error to refuse correct instructions where they are already fully covered by the court's charge.

7. Eminent Domain--Action Against Railroads for Damages to Abutting Property--Sufficiency of Instructions. Instructions examined, and found to be a substantially correct statement of the law, and to cover the material issues of fact with reasonable fairness and fullness.

W. F. Evans and Kleinschmidt & Grant, for plaintiffs in error.

Ledbetter, Stuart, Bell & Ledbetter, for defendants in error.

HARRISON, C. J.

¶1 This was an action for damages to plaintiffs' property resulting from the noises, smoke and soot, etc., caused by the operation of a roundhouse and switch yards adjacent to plaintiffs' property. Plaintiffs sued for $ 3,000, and were given a verdict for $ 1,500. The railroad company, defendant below, appealed upon an assignment of numerous errors, which, though grouped into four propositions, are considered and argued all together. However, they involve three distinct questions necessary to be answered:

1st. Whether the verdict was contrary to law and the evidence

2nd. Whether the court erred in permitting plaintiffs to substitute the name "St. Louis-San Francisco Railway Company," instead of the name "St. Louis & San Francisco Railroad Company."

3rd. Whether there was error in the court's charge to the jury.

¶2 The first proposition goes to the question of right of recovery under the law. The plaintiffs sued for compensation for the damage done to their property, caused by the running of trains, jarring noises, vibrations, whistles, escaping steam, coal dust, soot, cinders, etc., in the operation of the roundhouse, coal chutes, and switch yards; the basis of their action being the damage actually sustained, and their right of recovery being upon section 24, art. 2, of the Constitution, which provides:

"Private property shall not be taken or damaged for public use without just compensation."

¶3 The railroad company defended on the theory that the action was governed by the law of nuisance, that the right of recovery in this action depended upon the law for recovery from operation of a nuisance. A great many authorities are cited in support of the railway company's theory of the action, but the authorities cited are not applicable to the issue in this case. Plaintiffs' case was not based upon such theory. While the damage sustained may have been of me same character as it would have been had the operation of the railroad been a nuisance, yet they did not sue upon that ground. They sued upon the theory that, though the operation of the railroads be lawful, yet if their property had been depreciated in value by the location of roundhouse, coal chutes, and switch yards, and the operation of trains and switch engines in such close proximity, they were entitled under the Constitution to compensation for damage actually sustained. Under the decisions of this court, and the courts of other states where the same question has been presented, the right to recover has been upheld. In Muskogee et al. v. Hancock, 58 Okla. 1, 158 P. 622, the right to compensation under this section of the Constitution was under consideration, and this court held that, under said section, "a recovery may be had in all cases where private property is damaged in making an improvement that is public in its nature." In the syllabus the court said:

"The use of the words 'or damaged', in addition to the word 'taken', in the above section of the Constitution, indicates a deliberate purpose not to confine a recovery to cases where there is a physical invasion of the property affected, but to make the test of liability the fact that private property has been 'damaged' for the public use, without regard to the means by which the injury was effected."

¶4 It was also said in the above case that the degree of care exercised in the work upon said utility was immaterial. Nebraska has a similar provision (sec. 21, art. 1), and in the case of Omaha & N. P. Ry. Co. v. Janecek, 46 N.W. 478, the court said:

"If the property has been depreciated in value, by reason of the public improvement, which the owner has specially sustained, anti which is not common to the public at large, a recovery may be had. In the case at bar, the plaintiff's property is depreciated in value by the noise caused by the operation of the defendant's engines and cars in front of his premises, and in close proximity to his house, by the casting of soot, smoke, and cinders upon his property, and by the vibration of his house. The plaintiff has sustained special damages by the construction and operation of the railroad near his premises in excess of that sustained by the community at large. Smoke, soot, and cinders are not thrown upon property situated a few blocks from the road, nor does the moving of trains jar buildings that are distant from the track. The fact that the property of a dozen or more owners in the town is materially injured by the location of the defendant's road does not affect the plaintiff's right to compensation for the depreciation in value of his property."

¶5 In the case of Choctaw, O. & G. R. Co. v. Drew, 37 Okla. 396, 130 P. 1149, a case which arose prior to statehood and in which a recovery was based upon the common-law right of action for damages, a judgment awarding damages was affirmed by this court. In that case the same contention was made that is relied upon in the case at bar, namely, that a railroad company is not liable to an abutting owner in damages resulting from noise, smoke, soot and other inconveniences arising from the operation of trains in lawful, careful, and proper manner, and that a nuisance should not arise so as to give a right of action from that which the law authorizes. In that case, as in this, the railroad company had located and erected roundhouse, switches, turntables, and cinder pit near the residence property of plaintiff, and, it was alleged, "so used them as to greatly impair the value thereof by filling the atmosphere with offensive gases, dust, steam and dense smoke, by throwing cinders over and upon said...