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judicial court of Massachusetts, given by them in answer to a question submitted to them by the senate of that commonwealth, in Re Institution for Savings, 9 Cush. (Mass.), 604. See, also, Nelson v. Vermont & C. R. Co., 26 Vt. 717; Thorpe v. Rutland & B. R. Co., 27 Vt. 140; Branin v. Connecticut & P. R. R. Co., 31 Vt. 214; Frankford & P. R. R. Co. v. Philadelphia, 58 Pa. St. 119; Baltimore & S. R. Co. v. Nesbit, 10 How. (U. S.), 395, 399, 400; Pumpelly v. Green Bay Co., 13 Wall. (U. S.), 166; Cairo & F. R. Co. v. Hecht, 95 U. S. 168, 170; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 32, 33; Newton v. Commissioners of Mahoning Co., 100 U. S. 548, 557; Missouri Pac. R. Co. v. Humes, 115 U. S. 512, 22 Am. & Eng. R. Cas. 557; 1 Hare, Const. Law, 609, 610; 2 Mor. Priv. Corp. (2d Ed.) §§ 1062, 1065, 1067; Cooley Const. Lim. (4th Ed.) *574, 716. The provision contained in the constitution of 1873 was merely a restraint upon the future exercise by the defendant of the right of eminent domain imparted to it by the state. By its terms, it imposes a restraint only upon corporations and individuals invested with the privilege of taking private property for public use, and extends the right to compensation, previously existing, for property taken, to compensation for property injured or destroyed by the construction or enlargement of works, highways, or improvements, made or constructed by such corporations or individuals. Such provision is eminently just, and is intended for the protection of the citizen, the value of whose property may be as effectually destroyed as if it were in fact taken and occupied. The imposition of such a liability is of the same purport as the imposition of a liability for damages for injuries causing death, which result from negligence, upon corporations which had not been previously subjected by their charters to such liability. Boston, C. & M. R. Co. v. State, 32 N. H. 215; Southwestern R. Co. v. Paulk, 24 Ga. 356, 7 Am. & Eng. R. Cas. I; Duncan v. Pennsylvania R. Co., 94 Pa. St. 435 Georgia R. & Banking Co. v. Smith, 128 U. S. 174, 35 Am. & Eng. R. Cas. 511; Cooley, Const. Lim. (4th Ed.) * 581, 724; 1 Hare, Const. Law, 421. Nor will the exemption claimed from future general legislation, either by a constitutional provision or by an act of the legislature, be admitted to exist, unless it is expressly given, or unless it follows by an implication equally clear with express words. In the present case, the statutory provisions existing prior to the constitution of 1873 in favor of the defendant cannot be properly interpreted so as to hold that the state parted with its prerogative of imposing the liability in question in regard to future transactions. Providence Bank v. Billings, 4 Pet. (U. S.), 514; Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 420; Christ Church v. Philadelphia, 24 How. (U. S.), 300; Gilman v. City of Sheboygan, 2 Black (U.S.), 510; Tucker v. Ferguson, 22 Wall. (U. S.), 527; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659; Newton v. Commissioners of Mahoning Co., 100 U. S. 548, 561; 2 Hare, Const. Law, 661, 663, 664."

Diminution of Damages by Deduction of Benefits. In Interstate Consolidated Rapid Transit R. Co. v. Simpson, (Kan., April 11, 1891), 26 Pac. Rep. 393, it was held that where a right of way for a railroad is condemned through a tract of land, the owner's damages cannot be diminished by any benefits likely to accrue from the construction of the railroad to that portion of the tract not taken. Following Leroy & W. R. Co. v. Ross, 40 Kan. 598, 36 Am. & Eng. R. Cas. 653.

In Colorodo it is provided by statute (Civ. Code, § 253), that the value of benefits shall be deducted from the amount of damages. Held, that in proceedings to condemn a right of way for a railroad it is error to withdraw from the jury evidence as to benefits to the property from the pro posed railroad. Colorado Cent. R. Co. v. Humphreys, (Colorado, March 6, 1891), 26 Pac. Rep. 165.

Excessive Damages-When Award of Jury or Commissioners will be set aside. A railroad company condemned a strip of land 3160 feet long and 100 feet wide, through an 18 acre tract. On the land stood a dwelling that cost about $1000, a barn that cost about $400, and other outbuildings, and an orchard that was not old enough to bear fruit. The road ran within 30 feet of the dwelling. The jury awarded a verdict of $3000. Many of the witnesses fixed the value of the whole land with the improvements at less than this sum. Held, that the verdict was excessive and the award should be set aside. Louisville & N. R. Co. v. Asher, (Kentucky, Feb. 12, 1891), 15 S. W. Rep. 517.

On the trial of a petition by a railroad company to condemn a right of way, the evidence was conflicting. The jury viewed the premises, and then rendered a verdict assessing the damages which was larger than the estimates of some of the witnesses, and smaller than those of the others. It did not appear that the verdict was against the clear preponderance of the evidence. Held, that it would not be disturbed on appeal as excessive. Chicago, P. & St. L. R. Co. v. Wolf, (Illinois, March 31, 1891), 27 N. E. Rep. 78.

In Street v. New Orleans, Ft. J. & G. I. R. Co., (Louisiana, Jan. 5, 1891), 9 So. Rep. 15, the court awarded damages to the amount of $400 for the appropriation by a railroad company for 11 acres of land, wood destroyed, and fencing required by plaintiff's property having been divided in the construction of the road.

When a trial court in an action to recover damages for the condemnation of a right of way taken for public use, arbitrarily reduces the amount of the verdict rendered by a jury from $3,227.08 to $2,589, and the record assigns no reason for such a reduction, and the record shows the jury adopted the highest and most extreme estimate of value, depreciation, and damage in the verdict returned, such judgment will be reversed, and a new trial granted. Parsons & P. R. Co. v. Montgomery, (Kansas, April 11, 1891), 26 Pac. Rep. 403.

On appeal from a verdict of a jury in condemnation proceedings, where the court cannot say that the verdict was influenced by passion or prejudice, it will not disturb it. Louisville & N. R. Co. v. Ingram, Kentucky, Oct. 14, 1890), 14 S. W. Rep. 534.

The assessment of damages is peculiarly the province of the jury, and where there is a motion to set aside a verdict, because of excessive or inadequate damages, the court must not encroach upon such province of the jury, save in strong cases of injustice. No mere difference of opinion, however decided, justifies an interference with the verdict for this cause, but the amount must be so out of the way as to evince passion, prejudice, partiality, or corruption in the jury. Battrell v. Ohio River R. Co., 34 W. Va. 232.

In a proceeding under Act Miss., March 16, 1886, to condemn a right of way for a telegraph and telephone company over a railroad right of way, witnesses for petitioners stated that the land to be occupied by the posts was worth from $2.50 to $3 per mile, while experts for defendant said it was worth to the telegraph company $100 per mile. The commissioners fixed the amount at $40 per mile. Held that, since it did not appear that "the commissioners acted upon testimony that was irrelevant or incompetent, and that their award was contrary to law, * * and that injustice had been done," the award would not be disturbed. Postal Telegraph Cable Co. v. Alabama & V. R. Co., (Mississippi, Nov. 24, 1890), 8 So. Rep. 375. In condemnation proceedings the jury are judges of law and facts, and their conclusions are not based entirely on testimony. They are expected to use their own judgment and knowledge from a view of the premises, and their experience as freeholders, as much as the testimony of witnesses

to matters of opinion; and appellate courts should not interfere, unless the errors complained of are such as may fairly be said to have had a controlling influence in securing the result. While, under the statute, the supreme court may, upon appeal, set aside an award of the jury in condemnation proceedings, and order a new appraisal, this should only be done where it is clear that the award is against the evidence. Fort Street Union Depot Co. v. Jones, 83 Mich. 415.

In an action against a railroad company to recover damages caused by the construction of a railway on a public road immediately in front of the plaintiff's residence, the grade being between eight and nine feet in height, and access to the property obstructed, and the value thereof diminished, the evidence showed that the property was thereby greatly diminished in value, and that the jury had based their verdict on the lowest estimates of the witnesses. Held, that the verdict would not be set aside. Nebraska & C. R. Co. v. Scott, (Nebraska, March 17, 1891), 48 N. W. Rep. 390.




(102 Missouri, 633.)

Eminent Domain-Railroad Track Over Street-Widening Street-Dama. ges to be Allowed Railroad.-A railroad company built its track over a street under an ordinance requiring it to erect and maintain a suitable bridge, so as to allow the use of the full width of the street. Such ordinance made no provision concerning the bridge in case the street should be widened. Subsequently the street was widened, the city taking property on each side from the railroad for that purpose. Held, that the expenses of removing embankments and adjusting the bridge to the street as widened, are proper elements of damage to be allowed the railroad company. APPEAL from Jackson Circuit Court.

Pratt, Ferry & Hagerman, for appellant.

R. L. Yeager, and Frank Dexter, for respondent.

Case stated.

BLACK, J.-This was a proceeding instituted by the city of Kansas to widen Vine street, formerly designated "Henry Street," so as to make it 70 instead of 50 feet in width. Vine street runs north and south, and is crossed by Twentieth street, which runs east and west. The defendant owns and operates a railroad, which runs east and west on and along Twentieth street. At the crossing of these two streets, the defendant owns property on the north side of Twentieth street, which extends up to the lines of Vine, and which is used as right of way in addition to Twentieth street. The railroad is carried over Vine street by a bridge, which was erected under the terms of the ordinance hereafter mentioned. Damages were allowed the defendant for the land

[VOL. 47 taken in widening the street, but no damages were allowed to compensate it for reconstructing the bridge, so as to make it conform to the street as widened; hence this appeal. By an ordinance approved in 1882, and which was accepted by the defendant, the defendant acquired the right to build a double track railroad from the eastern to the western part of the city across and along designated streets. This ordinance provides that the railroad shall cross certain streets at the surface thereof, and others by carrying the street roadway over the railroad, and in other instances the railroad must be carried over the streets by means of bridges. The ordinance gives the defendant the right to construct its road on and along Twentieth street where that street crosses Vine street. Section 4 provides: "Where said Henry street, Charlie street, and Forest avenue pass under said railroad, as above mentioned, said Kansas City Belt Railway Company shall erect and maintain suitable bridges, viaducts, or trestles of wood, iron, or stone, so as to allow of the use of the full width of said Henry street, Charlie street, and Forest avenue, excepting only such parts thereof as may be required for posts, columns, or masonry piers, to support the track: provided, such posts, columns, or masonry piers shall be set in rows parallel to the line of the street or avenue crossed: and provided further, that there shall not be more than three rows or tiers of supports on any one street or avenue-one at the center, and one at or just inside each sidewalk, and next to curb line, so as not to interfere with surface gutters: and provided further, that the total width of all such posts, columns, or piers in any one street or avenue, measured across the street or avenue, shall not exceed one-tenth of the total width of the street over which the railroad runs and provided further, that the said bridges, viaducts, or trestles shall be so constructed as to leave a clear headway of not less than fourteen (14) feet from the level of the grade of any of said streets to the under side of any bridge, viaduct, or trestle." Defendant offered the following proof: "That in pursuance of the terms of said ordinance, the said defendant, the Kansas City Belt Railway Company, entered upon Twentieth street and constructed its two railway tracks along the same. That the grade of the tracks of said railway is about sixteen (16) feet above the present established grade of the street, and said tracks are carried across Vine street by a trestle, or bridge. That, in order to construct its bridge, it was neces sary to make the same fifty (50) feet in length, in order to conform to the established width of Vine street, and it was necessary to raise embankments on each side of Vine street to a considerable height; also to place in position bents or supports in the street at the ends of the embankments on either

side. That the doing of each part of said work cost a large sum. That, in case Vine street shall be widened, as proposed, the said defendant company would be compelled to remove all the portion of its embankment within the new street lines, and to readjust the supports for its tracks so as to conform with the terms of its franchise, as set out in foregoing ordinance, at a very large cost to itself." This proposed evidence was excluded, on the ground that the defendant had, by the ordinance, assumed the burden of rebuilding its bridge. The record fails to give us any clear understanding of the present condition of Twentieth street. The railroad passes over and along it, and crosses Vine street on the bridge; but whether Twentieth street is open to travel does not appear. From the evidence offered, but excluded by the court, it appears defendant, in building its bridge so as to conform to the ordinance, made and was required to make an embankment in and along Twentieth street, extending up to the lines of Vine street. From this it would appear that the grade of Twentieth street is the same as that of the railroad, both crossing Vine street at an elevation of 16 feet above the grade of the last named street.

road crossing a highway.

The position of the city here is this: That the defendant must alter its bridge, without compensation therefor, so as to conform to the street as widened, because by the ordinance it is made the duty of the defendant Duty of rail. to" erect and maintain a suitable" bridge at this crossing, "so as to allow of the use of the full width of said Henry street." In support of this proposition, we are cited to a vast number of cases. They show that by the common law a person who cuts through a highway, though by authority of law, must furnish a suitable crossing. Where a railroad crosses a highway already in existence, the crossing must be made with as little injury as possible to the highway; and the railroad company must erect whatever structures are necessary to the convenience and safety of the crossing. This duty is a continuing one, without any express statutory requirement. Elliott, Roads & S. 599. And this continuing duty is in no manner cut down by charter provisions or statute law allowing the company to construct its road across highways in such manner as to afford and leave the highway in good repair for public use. Chesapeake, O. & S. W. R. Co. v. Dyer Co., 87 Tenn. 712, 38 Am. & Eng. R. Cas. 676. Where the duty of erecting and maintaining a bridge devolves upon the company, it is not enough that the bridge was adequate when first built; for if, by increase of population in the neighborhood, the bridge becomes inadequate, the company must make the necessary alteration to meet the

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