Yazoo & M.V.R. Co. v. Smith

• Decision Date: 29 April 1907
• Docket Number: 12,366
• Citation: 43 So. 611,90 Miss. 44
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. TOBIAS T. SMITH, EXECUTOR, ETC
• Court: Mississippi Supreme Court

43 So. 611

90 Miss. 44

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. TOBIAS T. SMITH, EXECUTOR, ETC

No. 12,366

Supreme Court of Mississippi

April 29, 1907

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

Smith executor, etc., of the last will of Mary Comerford, deceased the appellee, was plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

The suit was for damages to the land of decedent caused by defendant raising the grade of the street in front thereof on which grade defendant's tracks were constructed and operated.

The first count of the declaration was predicated of the raising of the grade of the street above the established grade fixed by the city and above the property of the plaintiff; and the second charged that in the maintenance of its tracks the defendant carelessly and negligently permitted the drains and sewers to become clogged, thereby preventing the drainage of surface water from decedent's property. The defendant pleaded the general issue, and on the trial offered in evidence a deed from Mary Comerford, plaintiff's testator, conveying to it a right of way in front of her property and releasing it "from any and all damages whether past, present, or future, for the construction and operation of its tracks along said street in front of said property." Plaintiff objected to the introduction of this deed. The court sustained the objection, and, after all the evidence was taken, instructed the jury that, if they believed from the evidence the defendant raised the grade level of the street in front of plaintiff's property and thereby damaged it, they must find for plaintiff and assess such damages as had been caused by the raising of the street. Appellant contended that the deed released it from all damages for the construction as well as the operation of the tracks and that the raising of the grade of the street being construction work, was permitted, and, since the declaration did not charge negligence in the raising of the grade of the street, the deed should have been admitted in evidence. The appellee contended that since, at the time of the execution of the deed, the road was already constructed and in operation, the deed was immaterial to the issue, unless it gave the railroad company the right to raise the grade of the street; that it was the raising of the grade of the street which caused the damage; that the city itself had no right to raise the grade to the damage of appellee's property; and the railroad company had no higher right or authority than the city.

The deed was as follows:--

For and in consideration of the sum of seven hundred and fifty dollars and thirty-seven cents to me in hand paid, the receipt of which is hereby acknowledged, I, Mary Comerford of Vicksburg, Mississippi, do bargain, sell and convey unto the Yazoo & Mississippi Valley Railroad Company, a corporation under the laws of the state of Mississippi, and to its successors and assigns a right of way for a single or a double track, along Levee street in the city of Vicksburg county of Warren and state of Mississippi, in front of any property owned by me in square 64, original plat of the city of Vicksburg, and for the consideration aforesaid I do hereby release the said Yazoo & Mississippi Valley Railroad Company, its successors and assigns and also the Louisville, New Orleans & Texas Railway Company from any and all damages, whether past, present or future, for the construction and operation of its tracks along said street in front of said property.

Witness my signature this 7th of November, 1893.

[Signed] MARY COMERFORD. [Seal.]

Affirmed.

C. N. Burch, and Mayes & Longstreet, for appellant.

The best rule with respect to the grant of right of way and to the release of all damages, past, present and prospective, which may occur from the construction and operation of railroad tracks, seems to be that by such a grant of right of way and such a release the landowner is cut off from all damages, except those which may result from a negligent operation and construction.

In other words, if any construction or work in operation is not shown to have been unnecessary and negligent, even if necessary, the plaintiff cannot recover. A release covers and precludes claims and suits on account of any work which was necessary and proper, and which was non- negligent.

The court will find in the case of Fremont & Missouri, etc., R. R. Co. v. Harlin, 36 L. R. A., a very full consideration of the principle which controls in such cases, with a collocation and examination of many of the leading cases in point. In this case the proposition is clearly asserted that a release of all prospective damages to result from the construction and operation of the road precludes the landowner and his grantees from any claim of damages from anything done in operation and construction, unless it is distinctly averred and shown by the evidence to have arisen from a negligent construction or a negligent use.

There is no presumption of negligence in a case like this. It makes no difference that changes of grade and elevations may be averred. It is essential that the change and elevation shall be expressly averred to have been negligently done, and that the proof offered should sustain the allegation.

Mrs. Mary Comerford's deed, granting as it did a right of way for tracks, and releasing, in words as strong and plain as they may be made all damages, past, present and future, on account of the construction and operation of the track or tracks, should be held to have been executed by her with full knowledge, and in full view of, all the exigencies of proper railroad construction and operation.

After the grant of a right of way on a street, and the waiver of all damages which are expressly made to apply to all prospective damages and when this is done for valuable consideration, the grantor and those claiming under her, should be held to be precluded from a claim for damages on every slight change or alteration in the track or roadbed.

Mrs. Comerford's deed should have been admitted in evidence, and, on it and the other proof as shown by the bill of exceptions, the peremptory instruction should have been granted to the defendant company on the first count in the case.

Bryson & Dabney, for appellee.

We think this case is controlled by the Connors case reported in 86 Miss. 356, 38 So. 320.

The deed in that case provided as follows: "I hereby release and receipt for in full all damages heretofore done or which may hereafter be done in the operation of said railroad over and along said street. This release, however, not to extend to, nor permit the unlawful operation of the said railroad over said street in the running of cars, or otherwise."

It will be observed that the deed in the case at bar releases damages for construction as well as operation and because of the addition above it was contended below that it was admissible, that the raising of the grade being construction work was permitted by the Comerford deed and to that extent was more potent than the Connors deed which contained no such provision.

It will be observed furthermore that the deed in the Connors case expressly excepted by its terms "the unlawful operation" of the railroad, whereas in the Comerford deed no such exception is found.

Counsel below contended that while this court has construed the Connors deed and held that it did not grant any right to raise the grade of the street, that the Comerford deed by reason of the release from damages for construction authorized the raising of the grade of the street.

Our view of the law is that it makes no difference whatever whether the raising of the grade of Levee street was negligently done or not, whatever damage was sustained by the plaintiff below was caused solely by the fact of raising the grade and not by the fact that it was done negligently. It was the elevation of the street that made ingress and egress to plaintiff's property difficult and caused damage, and not the fact of negligence in the work of elevating the same. It was the pile of earth in front of plaintiff's property that caused the damage, not negligence in the act of piling it. It might have been piled ever so carefully and skilfully and have shut off ingress and egress just as effectively and have ponded the water upon plaintiff's property just as deep.

Any change of grade was unlawful. The city could not lawfully change the grade of the street, and certainly the railroad could have no higher right or authority over the street. This was the holding in the case of Lefoldt v. Yazoo, etc., R. Co., 87 Miss. 317, S.C., 39 So. 459, a case involving almost identical facts to the case at bar.

The raising of the grade of the street in front of plaintiff's property was in the nature of a change of the plan of construction of the railroad and warranted a new assessment of damages.

So far as we have been able to find all of the authorities hold that where there has been a change in the plan of the work after the assessment of damages a new assessment may be had, provided additional damage resulted from such change.

Mr Mills in his work on Eminent Domain, sec. 219, states the rule as follows:--

"When damages have been assessed according to a certain plan, which would cause certain damages, it would be inequitable to allow the adoption of a new plan, more injurious to the owner without providing for a new assessment. If the company build in a different manner from the plan proposed, and according to which damages have been assessed, they may be restrained from construction until the additional damages are assessed. . ....