Taylor v. Bay City St. Ry. Co.

• Decision Date: 16 June 1894
• Court: Michigan Supreme Court
• Parties: TAYLOR ET AL. v. BAY CITY ST. RY. CO.

59 N.W. 447

101 Mich. 140

TAYLOR ET AL. v. BAY CITY ST. RY. CO.

Supreme Court of Michigan

June 16, 1894

Error to circuit court, Bay county; George P. Cobb, Judge.

Action by Robbins B. Taylor and others against the Bay City Street-Railway Company to recover damages for the construction and use of defendant's road on a street on which plaintiffs' property abuts. There was a judgment for plaintiffs, and defendant brings error. Reversed.

McDonell & Hall, for appellant.

T. A E. & J. C. Weadock, for appellees.

GRANT J.

1. The plaintiffs in this case were also some of the complainants in Taylor v. Railway Co., 80 Mich. 77 45 N.W. 335. The conditions under which the defendant was authorized to lay its track upon the street in question were there settled. The doctrine there established is stare decisis, and cannot be reviewed in this suit. That case was appealed to the supreme court of the United States, from which it has been dismissed. Plaintiffs instituted this suit to recover damages for the construction and use of the railway opposite its premises, situated on the corner of Third and Washington streets. By the former suit it was established that the ordinance of the common council directing and authorizing the laying of the track, and its use, did not authorize its construction and use before the institution and determination of proceedings to compensate the owners of adjoining property. The injunction granted in that case was not enforced, but the defendant continued the use of its track. The only remedy open to plaintiffs was to sue for damages during the time in which the injunction was not in force.

2. Inasmuch as the defendant has taken no steps under the statute for the determination of the damages, if any, to the adjoining property, plaintiffs are clearly entitled to maintain this suit, in which they can recover the actual damages sustained between the time of laying the track and the instruction of the suit. Mulholland v. Railroad Co (Iowa) 13 N.W. 726; Mollandin v. Railway Co., 14 F. 394.

3. Complaint is made that the court permitted evidence on the part of the plaintiffs tending to show that there was no public necessity for the existence of this road upon the street in question, and that the court refused to instruct the jury that the determination of the mayor and council that the laying and operation of the line on this street was a proper and public convenience was conclusive on all parties. The testimony was incompetent, and the request correctly embodied the law. If this were the only error, it might perhaps be held that it was without prejudice, but, inasmuch as a new trial must be ordered, it is proper to determine the question. Under the charter, the determination of the council is conclusive as to the necessity and public convenience, and the jury, under the proceedings instituted by the defendant, could determine only the question of damages. The court should have instructed the jury that the defendant had acquired the proper authority from the city to the use of this street. The only thing wanting to its right to lay and use its track was either an amicable settlement with the adjoining lot owners or proceedings to compensate them in damages.

4. Plaintiffs were allowed to recover costs, attorney's fees, and time spent in and about the chancery suit. This was error. These costs belonged to that proceeding, and whatever of them the law allows should have been, and presumably were, taxed in that suit.

5. The plaintiffs introduced evidence tending to show that drays and teams could not stand at right angles with the sidewalk between it and the railroad track, and leave room for the cars to pass. The court was requested to charge that the plaintiffs were not entitled to damages because of this, and that they did not possess the right to have teams thus stand in front of their premises for the purpose of loading and unloading goods. The testimony was incompetent, and the request should have been given. No objection exists to such use of the street until public convenience is thereby interfered with. But there is no inalienable right to place trucks and drays across the street...