J'EDEDAL REPORTED,
vol. 41. C.
JACKSON
CHICAGO,
S. F. &
Ry.
CO.
, (Oircuit OO'W't, W. D. Missouri, W. D. March 8, 1890.) 1. EHI1Q-El'{T DOH,uN-DAHAGE TO A,1lJOINING PROPERTY-DrVEJ\SION 011 BUSINRSS.
9.
The owner 01 land on' a street over which a railroad has been built, with the consent Qf.the municipallt;v, capnot recover from the railroa.d company for loss of travel to another street on account of the of tra.de occasioped by tbe presence of the'railroad, since sueh'dlunage 'is not peculiar to himself. '
BAHE.....G:aADING BTUIIlT.
a. , .
R4ILROAD CO¥p.&NIES--DBAINAGIIl.,.,.qrrr
Rev. St,Mo. 1879, § 810, whioh proVides that. railroa.d CQmpanies, any railroad in any county: of the state; shall construot and maintain suitable ditches to'carry oft water Whose 110w has be.n obstructed by the construotion of their railroads, does not apply .to railroads' constructed along a cit;v street, and a ,ailroad company construotin/f a dito.h in sueh litre.et, without mUnIcipal permtllsibn. is !lable to tlle o.wnera Ilf propert7 for damage to the renta!valUo thereof caused . suoh ditob. by ' , 'i
J. L.
At .Law.
Gardiner Lathrup and
Farri8ltQd Ba71 &: Harfliuton , for plaintiff.
"'.
,
for defendant.
PHILIPS, J .rrhis is an action for dELmages arising from the construe.tion of a railroad .along a stree.tin front of plaintiff's store-room in the ,town ofCamden, Ray county, Mo. Camden is a municipal corporation, under the General $tatutes. The defendant is a railroad corpoorganized under the laws·of t11e state of Illinois. Camden is a small town of a few hundred with one principal busipess street, known as "Front Street,"runningthrough the town east anqwest, about 60 feet in width. Plaintiff's business house fronts on this street, with a street running nol'tb and south on the east side of the store-room. On the west side of tilis store-room is a warehouse or storage-room, used .by ,plaiJltiff. in connection with his mercantile business, the entrance to whjch is from said Front street. The Missouri river runs in front of JhisJ()wp,. ,with said Front street, with no other street be;tween it Front street. Between the river and said street is ()f the. Wabash RaHtoad Qompany, the depot of which is some the east of plainti·ff's property. The material allegations of the petition are that, prior to the acts complained of, the said Front street was dedicated and used as a public highway; that in the year 1887 "the defendant, without authority of law and in violation of the rights of the plaintiff, wrongfully constructed its railroad track on said main street in front of the lot and buildings aforesaid, dug ditches to a great depth and width, erected high embankments, and changed greatly the grade of said street, whereby said street, with its crossings, is and was so obstructed that it cannot be
JACK$ON t'. CHICAGO, So F. &: Co RY. CO.
657
used by plaintiff for the benefit of his lot and buildings aforesaid; that the ingress and egress to plaintiff's property is totally destroyed by the acts of defendant aforesaid, to his damage in the sum of twenty-five hundred dollars." On the face of the allegations of the petition, that the defendant, without authority of law, had wrongfully constructed its railroad tracks on said street, it would seem that the plaintiff was proceeding on the theory of a malfeasance on the part of defendant, and that the damages claimed by him were incident to such an act; whereas, the undisputed fact is that the defendant so built its road under pel'mission and authority from the town, given in an ordinance theretofore duly adopted, for which defendant paid the town $10,000, and erected depot, etc." thereon, which grant the town under its charter was authorized to make. Thereis therefore some show of authority for the position taken by defendant that the plaintiff, under such a pleading, ought not to be permitted to recover 8S for a malfeasance. Randle v. Rauroad Co" 65 Mo. 332. But, giving the plaintiff the benefit of the doubt in my mind as to whether this technical rule is applicable to this case, I will proceed to consider- the cause on He merits. The adjacent property owner on a street has a definite, recognized right to and interest in the street in front ,of hj& property. It is Ii night to the free use of the street, in order to the ,-enjoyment of his property, as a means or access thereto and there.from. While this is so, the public likewise have an equal recognized right in such street which has been dedicated to the public use. Such stteetsare subject to what is'known as "urban servitudes," which in many respects are paramount to the right of the owner in fee of the contiguous lots. The state, in the exercise of its sovereignty, and the municipal corp6ration, have the power to authorize the appropriation of such streets to such uses "as are conducive to the public good, and do not inte,.. fere with their complete and unrestricted use as highways; and in doing so it is not obliged to confine itself to such uses as have already been permitted. As civilization advances, new uses may be found expedient." Ang; Highw. § 312; Thomp. Higpw. c. 2, pp. 25-27. It is now the recognized rule in this state that railroads operated by steam are permissible upon such streets, "because such methods of transportation and travel are among those to which the street may be properly applied, as not being inconsistent with its free and unrestricted use." Julia Building .A88'n v. BeU Tel. Co., 88 Mo. 271, andloc. cit. So deeply rooted is this doctrine in this jurisdiction that so eminent a jlirist as Judge. NORTON, in the case last cited, expressed a. doubt as to whether or not, after the dedication of property for a street; by which Hie dedicator gives up his right to compensation f(}r the uses included in the dedication; '!,he does not also give up his right to compensation for damages to adjacent property riot taken, resulting from the application of the street to a. use which by his dedication he authorized it to be put." By the constitution of this state of 1875, art. 2, § 21, it is provided private property shall not be taken or damaged for' public use v.41F.no.12-42
'65.8
,'J!ElmBAL REPORTER;' vol. '41.
'
hv,ithritit jnst :. Under t\lis provision, ithasbeemheldby .,the Sll preme court, ()f thest.8lte that damages resulting Jrdmanimportant -and mdical.change, in ther gra.deof the street nlay be recov:erea by:an ad'jacentfpropetity ; Werth v. OityojSpri:ngfield,78 Mb.107;House'lWlder'v.Cityoj'Kanaa8j831Mo.488. ,But thisrightin.lfl.ter cases is liD}ited toithe :iQstance:of '!a sudden and extraordinary change of grade, 'and: ,not ;from ,suoh, improvements ·of the street, in any ordinary and ':rea$ODabHuIDbde "deemed"benefiCial to the public good; for as to these the Jok>wner must be assumed to have consented." , JuliaBuildingA88'n 'v,Bell·Pel.C'o" iapproving the opinion ofDICICEY,:C.,J., in Rigney CdtYr#<Jhicagoj 102111.64, the foregoing provision ,of the,Missouri eoilstitution,was taken. .The construction 'placed by the ,supreme court of Illinois in the case just cited upon said constitutional pmvisiQn: hasLt'U1:therbeell approved',by: the; supreme of Missouri in 'RuI1e.'V.i'Oity' '10] St. 6' S. W. Rep. 257, as follows: ..:" In itO "\tarmnt' a reco'verydt must appear thattherehlisbeen ,Bottle of adght. publ,ic! private, which in with l!ispropertY,lJoJl.d to it an the,pli\iM,ll .. Rt llPcb ·. damage w,lth respect to hIs prop,erty In excess of that ,susta.me,il by, the .public'¢en'erally."., This Is fUrther qriali lied by the statement that.' the ab-sence oNiby statutory dtcol1stltutional provision Oil thesubjedt; the common law aJifords fJrelirE'ss in CaBes;' and we :htl veno dOUbt it w,as tbe '. intootion:of of toreq'Uire ,compenflation to be ,actionWQq1!l 'ii,
"It therefore results uptm the foregoing principles that; the plaintiff" Rs an :property sbutting 'on the str,eet; is Temitted to the ..common·law tuleas the·Jiltsi&- of that; he "must show, to ,entitle .him;"to.reco'ver: damages for ,obstmetion to a highway jthat the .damages are pecwiar to him; different in kind, and l10tmerely in degree· .from, thosa Isuffere!;l:by other,members,of thecommunhy"''. 2 DilL Mun. ·Corp. (3d Ed.}S,730. AcCordingly, it was held inRuae '5l.·. Oityof St. ,Louis, supra,fell!>wed"iD; Fwirchild v.Cit.yof'St; LouiS, 97!y1o. 85,11 S. ,'W. ·Rep.60i,' and Oa1tman v. GUy oj St. Louis, 97 Mo. 92,11 S. W. Rep. ,60,.that the llb!a,tting lot-owner could not recover for. consequential damages where:the.oOstruction of the street .cl.idnot lie to his property" and. where the inconvenience ,and discomfort arising from the obstruetionfwas ,alike: common to the public and .otlier;ptoperty own'ers. in the aIthoughhis injury may ha\'e differed in degree from .that of'others,b\lt Wll.S not peculiar to him in kind. ;.· ,The application of these, principles to the facts of the case'at bar makes ,it at the' plitihtiftLhf,LSbased his calculation' for damages ',upon' afal$e ,theoi'y, in part,'8t least; Much qf :the evidence .introduced "by'him ,for: :the,:-ascerwnm:ento£ -his dlimagesiisnot-admillsible. lIre ;cIaims;;fori that a part df his assumed damageS; l'esultsftoql the t.ross of tra.de, to store; 1>y an ,obstraction to, Front street some , I
JACKSPN II.
S. F, &: C.IW. CO.
65.9
blocks to the west of his'st(lre,];lOuse, by the defen<iant depot station so as ·to obstruct much of the travel on. said street, and by the crossing of defendant's road over this street still further west, which occasioned the opening of another street on the hill, some two blocks to the north of Front street, ontdwhich much of the travel from Front street was diverted. .Such damage is not peculiar to him,";""'different in kind from those sufferedhy other members of the coril111unity. The town authorities might have opened this street sua sponte,and by its superior condition have invited and drawn the whole travel over it instead of Front street, without the coosent of plaintiff, and without any liability to, him for such resultant injury. So if, by reason of the planting of this railroad track in Front street,with the attendant noise, discomfort, and alarm of its engines, parties coming to said town to trade should have gone on other streets with their teams and done their trading at other business houses, no cause of action would have been given therefor to the plaintiff. Randle v. Railway 00. ,supra, and cases heretofore cited. The wrongful acts the petition, from which the damages claimed are alleged to flow, are the erectinF; of high embankments, changing the grade of the street, and digging ditches to a great depth and width; whereby said street, with its crossings, was so obstructed that it cannot be used by plaintiff for the benefit of his The matter of the embankment and :the grade of the street will be considered together. !tis true the 'grade of the railroad track in front of the plaintiff's property was higher than that of the street, but in no sense so high liSt<> make an enibankment obs'tructing the view of or liccess to plahltiff's property. At .the thpe of the location of the railroad track there was in the lItreet,. a little west of the front of .property., quite a depression, where 8 had stood, occasioned, perhaps, by the tramping of horses; and as there was an accumulation of water, followed by mud, it is not apparent that filling it up would be objectionable to fl,nyone. It was filled by the. railroad, and the grade of the street was raised until it was brought up within a few inches of the plane of the sidewalk iJ;l, .front ofplairitiff's store. I quite. concur with the testimony of several witnesses that this was rather an improvement of the street. It is inconceivable how any injury to plaintiff's property resulted from. this change, making it more nearly. to the grade of· the railroad track. . With .respect to the ditcb, the evidence shows that,. at the fen4ant bQiltits road-bed in said street, it dug a ditch pr drain along its north side,a.bout 3 feet wide and 1l:l or 20 inches deep, for the purpose of carrying off water which CllJ:De down from the bluff onto said street. The defendant contends it was required to construct this ditch..by section 810, Rev. St. 1879, which is as follows: . "nahaU be the duty of every corporation, company, or person owninll' or opel'3tlng any"I'ailroad or branch thereof in this atate, amI of any corporation, comp!\ny, or persoQconstructing any milroad in thil! Within three months C(Omple.tion of the sa,we tlll'ough any .lllthllJ l!tate, to, cause to
660
FEDERAL; REPORTER.
vol. t1.
beconsttuetM and maintained suitable ditches and drains along each side of the of such railroad to connect with ditches, drains, or water-courses, so as to afford sufficient outlet to drain and carry off the water along such railroad, whfilneverthe draining of such water has been obstructed or rendered necessary by the construction of such railroad. " I question whether this provision of the statute is applicable to the instance of a railroadcollstructed along a street in a town or city. It could hardly be expected that a: railroad company would erect high embankments ina street without. epEl(jial authority therefor; for ordinarily, arid of right, a railroad should be required by the city authorities, in granting it the license to eo \1se its street, to construct its road-bed on the established grade of the stl'eet)·or, if they do not conform to the existinggrade, they are usually required to reform the grade of the street to that of the railroad track; and; if by such change of grade damage should be occasioned to the adjacent property owner, the company would be liable'therefor." My opinion- is that said provision of the statute was intended by theJegislature to apply only to such roads running through country districts"because; itsays,- "constructing any railroad in any countyoCthis state;'! and in the'cla;use immediately succeeding occurs the following: ( "And, in case such corporation'; c'ompany, or person shall faiI or neglect to construet and maintain such ditches or drains within the time limitfd in this article, the county courts of,the counties through whic.h said railroad has been or may be 19C1)ted are herebYlluthorized and required, upon the petition of twenty land-own,E!rs of along the line Qf and contiguous tosllch to cause such ditches ,ordl'alns to be constl'uctM and maintained; and such court may maintain an action agaiust such corporation," etc.; "so failing to construct and maintain sach ditches or drains" in any court of competent in the name of such county, and shall be entitled to recover all costs, expenses, and damagesincutred and accruing in the construction and maintenance of such ditches or drains." It is notapparent'that it could have been in the mind of the legislattlre to authorize the county court to have anything to do with the bringing of suits for the recO\"ery ofsuch damages, or overseeing any such matter, wi thin the corporate limits Of the municipaHtYi for the latter is a body politic, invested with Control and jurisdiction of its streets and internal government, with power to slle and be sued, etc. Theordinarice passed by the city authorizing defendant to construct its, road along said street contains tio provision respecting such ditch or'drain.. Its construction, therefore, was the voluntary act of thedefendant,aridevidentlywas done for the purpose of protectirigits own property,andn'otthat of the public. It would therefore seem to fQllowthat, if anyspeCiil:l damage has resulted from its construction tdthe plaintiff, he is entitled: to recover therefor. After the defendant constructed this ditch with a width of 3 feet and a depth of 18 or 20 inches; did ,not so maintain it, but s\1ffered it to widen l;lng enlarge by the:scoringor falling in of the sides, until its width was in. creased to:8!or 7 feetjand its depth also increased. caused by the flow of surfli<le 1I'atet through it. ," It was the duty of the town of Camden to
JACKSON iI. CHICAGO, S. F. & C. BY. CO.
have kept this street in repair in front of plaintiff's property, and for its neglect in that respect it was and is liable to anyone sustaining damage therefrom. Torpey v. Oily of Independence, 24 Mo. App. 2R8. It would not follow, however, that the liability oithe city for permitting this nuisance would exempt the defendant from liability for its tort. The only damage, however, which the plaintiff can recover under the allegations of his petition, is such as flow directly from the digging of the ditch. The petition is not framed on the theory of defendant's neglect in suffering the enlargement of the ditch after the digging. Benson v. Railroad Co., 78 Mo. 513; Bird v. Railway Co., 30 :Mo. App. 379. The ditch dug by defendant left between it and the sidewalk in front of plaintiff's property 19 feet, the sidewalk itself being 11 feet wide. The railroad track was 22 feet from said si<;lewalk. The special inconvenience and injury claimed by the plaintiff to his property, in consequence of the proximity of the ditch, is that it -prevented him from the free and rightful use of his warehouse; that he could not drive a wagon up to this warehouse and back it to the platform, and unload goods and produce' therbrrom, as theretofore; that, owing to the narrowness of the street, .a wagon could not turn around thereirt in front of his store, etc. This becomes the more apparent when it IS considered that there was no practicable outlet for wagons turning to the north or to the south across the railroad tracks to the west of this wareroom, It is difficult to the conclusion, from the evidence. that the proximity of this ditch did interfere with plaintiff's privilege in this respect. The more difficult question which I have found to solve,iri view -of theevi,qence, is how to the measure of dAmage ra.suIting from this obstruction; for the reason that plaintiff,by'his evidellCe, has furnished the court little data by which to proceed iI} t,his estimation... The case was tried by plaintiff on the theory that the damages were to the freehold, tending to its permanent depreciation. This, how-ever, is n0t the law as applied,to the facts of this case. As the defend_ant had constructed this ditch without authority of law or any grant from the town, it was in the nature of a nuisance, which the town at anytime .could abate. It is therefore but permissive and temporary in its character, and as such it comes within the rule laid down by thesupreme'cou-rt -of this state in Smith v. Railroad Co., 98 Mo. 20, 11 S. W. Rep·. 259. wheJ:e it is held that the party injured can recover only for the diminution of the rental value of the property to the time of beginning his action. I -conclude from the evidence before me that the market value of ihis property, independent of the existence of this railroad and track in .said town, was not over $2,500 or 83,000. It was almost impossible for the witnesses to place anything like reliable market value thereon, for the reason that there did not seem to be any sale for such property in the town. Giving the plaintiff the largest margin possible under the -evidence, the value of.the fee to this property may be placed at $3,000. It would be a liberal estimate to place its rental at 10 per cent. of its ",aIuation" which would be,$300 per year. The more troublesome quee-
J'EDERALREPORTER,'
vol. 41. '
tioD-, then, arises, by what safe and;reliabledata, to avoid 'conjecture, is the court, under the evidence before it" to arrive at· the dirilinution of this ditch? As this this annual rental consequent upon estimation is to be based solely upon .the in(',onvenieI'lce of getting the goods and produce from a wagon into the warehouse or store-room, I think 15 percent, on the rental value would be a liberal allowance; on the evidence before the court; which up to thetiII,le of the institution of suit would amount to $75, f(i)r:which sum judgment will go for plaintiff.
ELLITHORPE' Am-BRAKE j;, I I', c
eo: tI. SIRE. '
(Circuit OO'UTt, B.D. New Yor1c.Haroh :6, 1890.) , . ,
L .CoNTUO'1's-RlIJi'USAL TO ALLOW :P:Ulll'OBM6.NOBo' Defendant made no Objectlonsto platls for elevator cars contracted for{when ," submitted, to him, and stood by untiloll'e had been put in; when he bedame dissatisfied with its carrying capacitr, and to l1ave a different car used in the second elevatorJ whicb wall thiln; With tb,e exception of l'utting the car in/lace, nearly completea,but refused to ,give & written order for the'change, an prevented plaintiff's men ,from puttingr ,in the origiqaJ car. , Plaintiff had had di:Ol.olllty in getting the payments desired $8 the wOl'k progressed, and refused to make a change without a writing. Held, that· defel'ldant had accepted the plans, and was guilty of a breach of contract hi refusing tQ.al111w to put the seconq carin. ,,'BAMII.,..D.u.UGES FOR BREA.CII. "P16intitr, having proviaed IDBohinel'Y' for an elevator. and delivered it on defend· alld having1)eeIi wrongfully prevented by defendant from completing'the ,contract, can recover the, full value of his labol' lI-nd materials, though de. /'fendantBfterwaros :fI.nishea'the elevator, not using the detached portion of plain· ., tiff's materials. : " '
, . : , ,', ,,' , '. " . , Damages 'for refusal to accept' elevators ordered, where they remain aUhe faotory, and no losiof pro:fl.ts is proved, iJl the COllt of storage and insurance.'
:.t Law. -<}.i
j :) .
ActioD, for breach of contract. SCl'1!1Juel Ashton, for plaintiff. 4lberll. Sire andCha1Jlncey, Shaffer, for defendant.
, .SHiPMAN, J. This is an action at law, which was tried by th court; ' a.tl'U!;lby jury having by written stipulation signed by the Upon said trial, the following facts were found to have been proyed, and to be true: The t>laintiff is, and was at the .commencement ofthh!,suit, a corporation duly incorporated under and by virtue of the ]lj.ws<ofthe state of Illinois, and located in and an inhabitant of Chicago, iD,'$llid state; where it has and continuously has had its principal place of;.business. The defendant. is, and was at the commencement of this suit, a citi:l;enof the state of:New. York, and a residerit and an inhabitant ofNew York city, inthesonthern district of said state. The ,plaintiff' i8,'80 m,anufacturer of elevators.Onor:about October 1, 1888, the plaintiff: and defendant, entered: into a written contract whereby the plaintiff agreed to, fumish·,.nd erect ,for the defendant,in a·good, substantial, and workman·like manner, two hydraulic passenger elevators in his double