Williams v. Meridian Light & Ry. Co.

• Decision Date: 26 April 1915
• Docket Number: 16928
• Citation: 110 Miss. 174,69 So. 596
• Parties: WILLIAMS ET AL. v. MERIDIAN LIGHT & RY. CO. ET AL
• Court: Mississippi Supreme Court

69 So. 596

110 Miss. 174

WILLIAMS ET AL. v. MERIDIAN LIGHT & RY. CO. ET AL

No. 16928

Supreme Court of Mississippi

April 26, 1915

APPEAL from the chancery court of Lauderdale county. HON. SAM WHITMAN, JR., Chancellor.

Suit by F. W. Williams and others against the Meridian Light &amp Railway Company and others. From a judgment sustaining a demurrer to the bill of complaint, complainant appeals.

In March, 1912, appellants filed a bill in chancery, alleging that they are the abutting owners on Eighth street, the most popular and populous residence street in the city of Meridian; that said street is thirty-six feet wide between the curbs, and that the defendant street railway company operated a single track in the middle of the street for a number of years; and that said street railway company was desirous of laying a double track for a number of blocks along said street in front of the property owned by the complainants, who protested to the city authorities and to the street railway company against the double-tracking of said street, claiming that it would result in serious damage to their property, as well as subject them to great inconvenience. The bill alleges that with a single track on said street there is a space of thirteen feet on each side between the cars and the curb, whereas with the double track there would be only eight and one-half feet on each side of the street, and that as a result of said double-tracking vehicles could not pass each other between the cars and the curb, horse-drawn vehicles could not be left standing near the curb, and aside from the fact that the car tracks would take up a large part of the street, complainants were greatly damaged and inconvenienced by the laying of said tracks, and by the digging up of said street, and the noise incident thereto, said work having been carried on both night and day and since the double-tracking of said street larger cars ran on a five minute schedule, instead of every fifteen minutes and made a great deal of noise, damaged complainants' property and complainants claim protection of section 17 of the Constitution of the state, which provide that:

"Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law.'

The bill alleges that in October, 1910, the trustee in the mortgage securing the bonds of said street railway company had filed a bill against the street railway company, the city, and the complainants, and others, to restrain any interference to the construction of this double track which the street railway company desired to lay, and obtained an injunction, and under this injunction, that the street railway company had entered upon said street, dug it up graded it, and proceeded to lay the double track in defiance of the rights of the abutting owners, and that said injunction was finally made perpetual by the federal court, and thereafter an appeal was prosecuted to the United States circuit court of appeals, and the decree of the lower court was reversed, the court holding that the United States district court had not jurisdiction and dismissing the bill, but in the meantime, under the protection of this federal injunction and before the case was reversed by the court of appeals, the double track had been laid; that the taking possession of the street in the manner described, and appropriating the same to the use of the street railway company, and laying the double tracks were willful, deliberate, and premeditated acts of trespass, in defiance of the rights of the abutting property owners. The bill further alleges that complainants have been subjected to great damage to their property, and besides have been forced to incur large expenses in attorney's fees, court costs, and expenses incident in contesting the various suits from this action by the street railway company.

The bill prays that the double tracks be declared to be a nuisance, and abated as such, and that the defendants be required to remove same and place the single track back in the street, and that complainants be awarded such damages as they have sustained, and that defendants be restrained from using or operating said double tracks until all damages which may have been adjudicated shall have been paid. There was a demurrer to the bill as finally amended, which was sustained, and this appeal is taken.

Reversed and remanded. Overruled.

Green & Green, for appellants.

In the suggestion of error, the counsel does not seem to understand the opinion of the court. The opinion answers the first two questions, namely: First, "Is the laying of the additional track in the street in question a public nuisance from which abutting property owners sustained such special damages as will entitle them to the abatement thereof?" Second, Does the laying of this second track impose an additional servitude upon the street; or, in its last analysis, does a street railway impose an additional servitude upon a street for which the abutting property owners are entitled to compensation?" The court holding:

"It seems to be settled by the great weight of authority that the first two of these questions must be answered in the negative in so far as they are governed by common-law principles alone."

The court then proceeds to interpret section 17 of the Constitution and the right of abutting property owners and holds that under section 17 of the Constitution, abutting property owners are entitled to damages incurred.

It is the change that section 17 has made in the common-law rule that is the predicate of the complainant's claim here. The court's questions are:

"(1). Under section 17 of the Constitution as applied to the case at bar in our former opinion can a street railway company be enjoined from laying or maintaining its tracks in the street of a municipality without first compensating the abutting property owners for any damage thereby inflicted upon them; and

"(2). Is this question presented by the pleadings?"

Answering both of these questions presented by the pleadings, is the right of an abutting owner to have the laying or maintenance of the tracks enjoined until and unless compensation is first made. The pleadings do not claim any decree for the amount of the damages, but confine the exercise of this jurisdiction to their right to the injunction until compensation is first made.

The chancery court, would not have the jurisdiction to exercise the power of eminent domain. This power is confided to a special tribunal created by statute and which has power only to ascertain the amount of damages. Resort must be had to the chancery court for an injunction against the right to exercise eminent domain to condemn, and the chancery court must, before, and even after, the amount of damages has been ascertained in eminent domain proceedings, declare whether the right to exercise eminent domain proceedings in the corporation actually exists.

In Lumber Company v. The Railroad, 89, Miss. 84, it was held that the special court of eminent domain was only organized to determine the amount of damages and has no jurisdiction to determine the question of the right of the plaintiff to condemn the land, and there it was held that it was proper to enjoin the proceedings in condemnation until the right to condemn was ascertained. The court says, page 113:

"Since neither the constitution nor the statutes provide a particular tribunal in which to try the question of whether or not the use for which private property is to be taken is a public or private use, and since it is made a judicial question by the constitution, when it is sought to try the question, it must be by injunction, and in the chancery court, enjoining the entry upon or appropriation of the land, because the use for which land is sought to be taken is not a public use."

It is beyond the power of the Legislature, much less a municipality, under section 17 to permit the property of the abutting owner to be damaged without compensation first made, and injunction, either before or after the injury is done, is the proper remedy until and unless the corporation shall resort to eminent domain proceedings to ascertain the amount of damage and to pay that damage before the injury can be inflicted. Thompson v. Grand Gulf Railroad Company, 3 How. (Miss.) 240; Stewart v. Raymond R. R. Co., 7 Sm. & M. 568; Railroad Company v. LeBlanc, 74 Miss. 650, 674.

Here the case is on demurrer to this court, and this court has overruled the demurrer and upon remand, if it shall appear that complainants are entitled to the relief prayed--if the facts charged in the bill are true--then under this rule, it would be the duty of the chancellor to grant the injunction as prayed, but to stay the enforcement of the injunction until the railroad company could have an opportunity to institute eminent domain proceedings to ascertain the amount of damages which had been sustained, and which must, first, be paid by it, before it could lawfully occupy the street. The rule of Thompson v. Grand Gulf Railroad & Banking Company, 3 How. (Miss) supra, has been followed in a number of cases. Pearson v. Johnson, 54 Miss. 263; Laurel v. Rowell, 84, Miss. 435; Board of Supervisors v. Lumber Company, 103 Miss. 324; Levee Commissioners v. Dancy, 65 Miss. 341.

The result is, that the chancery court has jurisdiction to grant this injunction, and should do so; and, as stated, in granting it require that the Railroad Company should institute eminent domain proceedings to ascertain the amount of damages done to the abutting property owners, and when this is ascertained and paid, then the decree for quiet enjoyment, as was the rule in 7 Sm. & M., supra, should be made.

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