Alabama & Vicksburg Railway Co. v. Bloom

71 Miss. 247 | Miss. | 1893

Woods, J.,

delivered the opinion of the court.

This was an action instituted by Elias Bloom against the Alabama and Vicksburg Railway Company for damages resulting from the construction of a track along and upon the street, in the city of Jackson, on which his residence was situated, and where he had lived for twenty or thirty years ; and Bloom alleged in his complaint that said track was laid down without his consent and over his protest; that, in the construction of said track, the railway company tore up and destroyed a stone crossing, which he had laid more than twenty years ago, to enable himself and family to go over the street on their way to the business portion of said city dry shod and without wading in mud; that said track, when laid down, was, in effect, used merely as a side-track, and that the street and the crossing at his place of residence was often blocked by cars and trains of ears so as to seriously interfere with ingress to and egress from his home, as he had theretofore been accustomed to enjoy the same; that night was made hideous with the din and noise of engines and •cars on said track, and the very air about his home polluted with the stench arising from droppings of live animals loaded on cars on said track, and from filth dumped out near his premises, to the great inconvenience and discomfort of himself and his family, and to the damage of his residence property. The declaration concedes that the fee in said street is in the city of Jackson, and that said city had, unlawfully, authorized the construction of said track; but the' plaintiff also averred that the municipality of Jackson held such title to the street, in contemplation of law, in trust that the same should be used as a public street, and that his rights, as an abutting lot owner, were to have free access to and from his property over said street, and to make such use of it as was customary and reasonable, and free from unusual, dangerous and permanent obstruction therein, and free from nuisances therein, or any misuse thereof which diminished his comfort as an abutting lot owner, or the value of his property, unless upon legal condemnation and payment of damages first made.

It will be well to bear in mind that the construction of the said track and the infliction of the said supposed several injuries •were after the adoption of the constitution of 1890. Section 17 of that instrument declares that “ private property shall not be taken or damaged for public use except on due compensation being first made,” etc.

Without examining in detail the several pleadings and the rulings of the court below thereon, it is sufficient to say we find no errors in any of these.

The questions raised were, substantially, whether Bloom could recover on the case stated in his declaration, the fee to the street being in the municipality; and whether, in, any event, Bloom’s property had suffered such damage, flowing from the acts of the railway company, as warranted the recovery.

The first question was answered affirmatively in a declaration, not of the force of settled adjudication, in the case of Theobold v. Louisville, New Orleans & Texas Railway, 66 Miss., and was again affirmatively and authoritatively answered by the decision of this court in the case of Stowers v. The Postal Telegraph-Cable Company, 68 Miss. In this latter case, Stowers averred ownership in fee in himself to the middle of the street. The answer of the telegraph company denied this averment of the bill, and no proof whatever was taken on this point. Upon elementary principles, we were shut up to treat the fee of the street as in the municipality of Vicksburg ; and on this state of case, in which the question was distinctly presented, we held that no different rights were involved in such cases, no matter whether the fee was in the public or in the abutting lot owner. We have carefully con.sidered the elaborate argument of the learned counsel for appellant, seeking to convince us of the propriety of overruling our former decision in the case last named, but we find no reason to shake us in our conviction of the perfect soundness of our former opinion.

It is impossible to imagine a state of facts which would authorize a recovery in such cases as the one at bar, if the declaration and evidence in this litigation does not show it. We are not called upon to express any opinion as to the rightfulness of a recovery in cases not embraced in our constitutional provision for compensation for damages to private property, as .well as the taking of the same for public use. The learned counsel seems to concede that a recovery could be had in this and similar cases if the words “ or damaged” were in onr organic law. The counsel, of course, failed to note the insertion of these enlarging words in our present constitution.

We are unable to say we feel such dissatisfaction with the amount awarded'as would authorize us to pronounce it excessive, and so require ns to set aside the judgment of the court below and award a new trial.

Affirmed.