Hall v. Meridian Light & Ry. Co.

delivered the opinion of the court.

While this declaration contains a great deal of irrelevant matter, it does distinctly allege that the .laying of the second track has resulted in damage to appellants’ property, for which, under Williams v. Meridian Light & Railway Co., 110 Miss. 174, 69 So. 596, they are entitled to recover. The demurrer, therefore, should have been overruled.

Reversed and remanded.

(dissenting).

The sole question presented is whether the declaration sufficiently states a cause of action j whether it claims damages that the law recognizes and allows. The declaration is rather unique. The tongue, of the pleader in dictating the document seems to have been unbridled and the pleading as a whole presents a general written assault on the defendant, the defendant’s counsel, and the federal court which took jurisdiction of a prior injunction suit involving this same controversy. . As well stated in the majority opinion, the declaration “contains a great deal of irrelevant matter,” and the court is compelled to search -a mass of wholesale criticism stated in unrestrained language in order to separate the good from the bad and determine the real negligence or wrong complained of. The statement of the litigation in the federal court has no bearing upon the right of the plaintiff to prevail in the present litigation. This is not a suit for the malicious prosecution of prior litigation, and the -circuit court of ap*774.peals iu disposing of this prior litigation expressly stated in its opinion that:

“There is no good reason in the record for holding that the order granting an injunction pendente Ute, which is the subject of this appeal, was improvidently or erroneously granted.” 186 Fed. 419, 108 C. C. A. 341.

The substance of the complaint in this case, as I see it, is about as follows: That appellants, the plaintiffs in the court below, are the owners of the premises fronting one hundred and fifty feet on Eighth street in the city of Meridian on which is located their home; that the appellee is a corporation owning and operating under express license from the city of Meridian a street railway system on and over various streets of the said city; that appellee company had been operating a single track on Eighth street for some fifteen or twenty years; that Eighth street is thirty-six feet wide from curb to curb; that appellee by permission of the city authorities built an additional track omEighth street, or “double-tracked” its line on Eighth street; that plaintiff and other property owners filed a written protest; that from this written protest it appears that Eighth street was being paved and the street railway company wanted to double-track its line before the pavement was put down. It further appears that in the written protest, appellants requested “that the proposed paving of said street be proceeded with as speedily as practicable,” but objected to the double-tracking of the street. It is then claimed that the double-tracking of this property operated to damage the private property of the plaintiffs, and that under section 17 of the Constitution plaintiffs had a right to recover damages. The elements of damage relied upon by the plaintiffs are: First, that in the construction of this additional track, appellee was compelled to haul many carloads of cross-ties and rails and to dump them from the cars onto the ground, and that in laying the track the company used several hundred negroes who made an unusual noise in front of the plaintiffs’ property. It is further charged *775that this noisy construction work proceeded under the protection of an unwarranted injunction. It is then charged that the street has been rendered more noisy, dusty, and dangerous by the increased number of cars to be operated upon a double track.'- The next element of damage relied upon is that when cars are passing, vehicles drawn by animals cannot be left standing hitched at the curb in front of plaintiffs’ premises. The declaration as a whole shows that the width of- the street is thirty-six feet; that the space between the inner rails of the double tracks is five feet; that the space between the outer rails and the curb is ten feet and seven inches; and that a car would overlap the outer rail twenty-two inches. It is further shown on the face of the declaration that there is a clear space between a moving or standing car and the curb of eight and one-half feet. There is some basis for the calculation that there is a clear space between, the nearest curb and any passing car of eight feet and nine inches. It is needless to say that the averments of facts must prevail over the mere conclusions of the pleader, and that if there is a conflict between the facts stated and the conclusions charged, then, the facts must prevail. As I construe the declaration, there is no positive showing that appellants’ right of ingress and egress is invaded or seriously interfered with. There is certainly no showing that .appellee has touched the plaintiffs’ property in any respect. There was no invasion or taking of the plaintiffs’ property, and this is not a case also where the defendant has emitted smoke, cinders, or other deleterious agencies onto the plaintiffs’ property. What, then, is the real complaint? It must be answered that the complaint is based altogether on the mere double-tracking of Eighth street without a showing as to how this double-tracking will in any wise interfere with the free use and enjoyment by the plaintiffs of their property. They can use their home as well after the double-tracking as before. There is ample room for vehicles to pass between moving street cars and the curb of plaintiffs’ lot. The plain*776tiffs can hitch, a horse "in front of their home or leave an automobile or other vehicle standing by their curb..

The question of whether the laying of a surface street railway system is an additional servitude has been presented to this and other courts with much ability and learning’, and I shall not enter into any elaborate discussion of that subject. It was answered by our court in the very ease relied upon by the majority opinion for reversing the present case. In this case of Williams v. Meridian Light & Railway Co., 110 Miss. 174, 69 So. 596, it was expressly held that the laying of a second track by this very street railway company did not impose an additional servitude upon the street, and also was not “a public nuisance.” The court there asked and answered both questions, stating:

“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.” -

But proceeding, the court did hold that under section 17 of the Constitution the company was without power to construct or operate a street railway on the streets of Meridian “until compensation has first been made to the abutting property owners for any actual damage which will result to them therefrom, and an injunction will lie to prevent it from so doing.” Recognizing, then, and following this opinion, the only question is whether the plaintiffs' have sustained “any actual damage.” What is “actual damage”?

There can he no recovery in this case for the alleged noise and the temporary obstruction in the street in laying the ■ additional track. It is manifest that while the temporary noise of the construction gang might have inconvenienced the plaintiffs for a short while, it was not and is not a damage to' their property. The declaration is bottomed upon section 17 of the Constitution, and the plaintiffs themselves rely upon this section of the Constitution and charge in general language that' their “property” has been damaged. This is not a suit for *777personal inconvenience, but for tbe alleged permanent damage to the real estate. As a matter of course tbe laying of an additional track could not be accomplished without tbe services of employees and without tbe use of cross-ties, rails, and other material. Tbe temporary obstruction of a reasonable portion of a street for laying public improvements and constructing buildings has always been permitted in every city. In the case of Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264, 1 Am. St. Rep. 831, tbe court, by Earl J., said:

“An abutting owner engaged in building may temporarily incroacb upon tbe street by tbe deposit of building materials.”

This statement was approved by Mr. Freeman, in 1 Am. St. Rep. 831, and tbe principle has been uniformly approved by all courts. There is,- then, nothing in tbe averment of tbe declaration that various and divers carloads of material were hauled and placed along the street. There was no showing that there was an unreasonable deposit of material, or that any greater length of time was consumed in. tbe construction than was absolutely necessary.

There can be no recovery also for tbe noise usual and incidental to tbe operation of cars along Eighth street. This was the express bolding of our court in Dean v. Southern Railway Co., 112 Miss. 333, 73 So. 55, L. R. A. 1917C, 346. Tbe note to this last case in tbe L. R. A. points to other authorities on tbe subject. Nor is tbe laying of a double track in itself an unwarranted use of tbe highway. Before tbe laying of a double track would be actionable, tbe plaintiffs must show sufficient circumstances resulting in damages to them which tbe public generally do not suffer. There must be some invasion of tbe plaintiffs’ right of ingress and egress or actual depreciation to their property. In tbe present case appellee bad not only been chartered to operate a street railway system in tbe city of Meridian, .but bad- been occupying Eighth street for many years. This street is reasonably wide and commodious. Tbe double tracking *778of this street does not amount to a nuisance, and does not interfere with the plaintiffs’ ingress and egress. Of course, neither a street railway company nor any other public agency has a right to close a householder’s front gate and force him to enter his home" through the back way. A street railway company cannot run over the plaintiffs’ property or seriously interfere with his use and enjoyment, by swerving its track too near the curb line. A case similar to the present was that of Birmingham R. R. L. & P. Co. v. Smyer, 181 Ala. 121, 61 So. 354, 47 L. R. A. (N. S.) 597, Ann. Cas. 1915C, 863. That case involved the laying of a double track, and the street there was only 34 feet in width. The court, by Mayfield, J., among other things, said:

“We do not think that the laying of a double track in the street, which is thirty-four feet in width, and in the manner alleged in this bill, is an unwarranted use of the highway, and one not included in, nor contemplated by, the original dedication of the street in question. If one line of the kind in question is for the purpose of ‘facilitating travel,’ and ‘imposes no- additional burden upon the abutting owner,’ nor a ‘new servitude’ upon the land, for which the owner is entitled to compensation, but is ‘ only an improved method of using the street for public travel,’ then, two lines or a double tracking of the same line, provided the public travel justifies and demands the same, must fall within, the same category. It may be that one line or a single track will not afford proper or adequate means of transportation for the requirements and demands of a growing city; and, if not, then we can see no actionable wrong in the city’s allowing or providing for two or more lines upon one street. We do not mean to say that a city cannot exceed its authority in placing so many car lines and cars on a given street as to constitute an additional burden, or a new servitude, not contemplated or intended in the dedication of the highway; but what we mean to decide is that a double track on the street in question, under the conditions shown in the *779bill,- is not snob an additional burden or servitude as would entitle tbe owner of an abutting fee to compensation. It is, we think, practically certain that the street in question will be as safe and as convenient for public travel in other vehicles, after the two tracks are laid, as now.

“It is very true that complainant and others who desire to have wagons and other vehicles stand at or near the curbing for the purpose of loading and unloading goods and freight may suffer some inconvenience; • but, as we showed at the outset of the opinion, this is a convenience allowed them by the law, which must yield to that of public travel along the street, whether it be in cars, in wagons, on horseback, or in automobiles, or in omnibuses. The old adage that ‘the street car is the poor man’s carriage’ is modernized so that the saying now is, ‘The street car is the poor man’s automobile.’ The streets are primarily for public travel, for pedestrians and vehicles and conveyances in motion, and not for the purpose of their standing thereon. One of the laws of the road is, ‘Move on; don’t stop.’ The policeman on duty in a crowded street proclaims it when he continually shouts, ‘Move on; don’t block the street or sidewalk.’ If the street in question is much used by many people in vehicles, as is alleged, then the complainant’s right to stand his wagon in the street, at his curb, must yield to the right of the many people to pass along the street, if both cannot be done at the same time. His rights and those of the public, the many travelers of the highway, are the same, whether they all be in wagons, carriages, omnibuses, automobiles, or in the street cars, except that the street cars must move on a fixed track, and cannot turn to the right or the left, as can other vehicles. The right of the public to-pass is paramount to the right of the individual to stand. ’ ’

I have quoted freely from this opinion because the learned judge in that case well states my views of the present case. He there well says that the street car is *780a poor man’s automobile. Without a street railway system or its equivalen!, a large city would be impossible. In the' larger cities street cars are a necessity to the great army of employees and children attending schools. The laying of the track does not monopolize the use of the highway. ' The tracks are required to be laid in such manner as not to interfere with the free use of the street by other vehicles, and, as said by Judge May-field, the law of the street requires all to “Move on.” It is not contemplated that street cars will stop in front of the plaintiffs ’ property, and the time when • a car would be immediately in front of the plaintiffs’ gate would be momentary. Its presence does not interfere with the plaintiffs’ easement of light and air or access to the street, as is the case sometimes in the construction of elevated roads. The construction and operation of a street railroad promotes the very- use for which the highway was originally dedicated. As stated by Mr. Nellis in his work on Street Railways, vol. 1, par. 82;

“The ordinary electric street railway with its trolley wire supported by cross-wires attached to poles near the outer edge of the sidewalks, with due regard to the abutting property owners’ convenience, is but an improved method of using the street for public travel. There is no limit to the public right to use a street, and every part of it, so- long as that use is in aid of public travel thereon and does not interfere unnecessarily with the common use of the way by ordinary modes of travel, and is no substantial impairment of private rights to property. Compared with a horse car, the electric car more certainly promotes the primary object of the highway. It moves more rapidly, is started and stopped with greater facility, and will more comfortably, and without obstructing the streets as much for travel by other means, move the greater number of persons the greater distance in a given time.”

It must be remembered that appellee, then, is engaged in a lawful business, and that plaintiffs are in the attitude of claiming special damages caused by the opera*781tion of a lawful business. I take it that tbe framers of our Constitution employed the use of the word ‘ ‘ damaged” in the sense in which the courts were accustomed to construe that word. The supreme court of Washington, in the case of Taylor v. Chicago, M. & St. P. R. Co., 85 Wash. 592, 148 Pac. 887, L. R. A. 1915E, 634, quotes to approve the language of the supreme court of Georgia in Austin v. Augusta Terminal R. Co., 108 Ga. 671, 34 S. E. 852, 47 L. R. A. 755, as follows:

“In a popular sense, the word ‘damage’ does frequently mean depreciation in value, whether such depreciation is caused by a wrongful or a lawful act; but in statutes or other legal instruments giving compensation for ‘damages’ the word always refers to some actionable wrong — some loss, injury, or harm which results from the unlawful act, omission, or negligence of another. In this sense, and as a well-defined law term, it was used in the Constitution to give the owner of private property compensation for the actionable wrong whereby his property had been damnified, but it did not give him compensation for depreciation in value caused by any legal act, since in law such an act was innocent, and therefore harmless, or, if not actually harmless, ‘damnum absque injuria.’ There is nothing in the language of the Constitution or in the debates, or in the proceedings of the convention, which shows any intent to enlarge its definition, or to make it mean more than it had always meant as a law term. ’ ’

The mere laying of a street car track does not ipso facto confer a right of recovery. There must be a showing of some damage which the law recognizes. As stated by Mr. Nellis in paragraph 80:

“Such an owner is entitled to the use of the street as a means of access to his property, and for light and air, whether the fee of the land in the street is in the municipality in trust for the purpose of public travel or in him subject to the public use, and of these rights he cannot be deprived without compensation.”

*782Any interference with these rights would operate to depreciate the property, and such rights would be safeguarded by section 17 of our Constitution. Deleterious agencies could not be projected upon the plaintiffs’ property. ' But the present declaration does not make it a case where any of these rights are violated by the defendant company. This case is to be remanded for a new trial. What, I ask, is to be presented to the jury? There must not only be an averment, but proof of some depreciation to the rental or market value of the property, and under the present pleading no such issue can possibly be presented to the jury in this case, and, if presented, there could be given the jury no legal guide except a peremptory instruction to find for the defendant.

In filing these reasons why I dissent, I suggest that the reporter set out the declaration in this case in full, since the document must be construed as a whole .and all admissions therein construed more strongly against the pleader.