121 Ark. 143 | Ark. | 1915
The plaintiff, Mrs. Kitty Gulledge, is the owner of real estate in the town of Montieello, abutting on the street along which the defendant has constructed and operates its railroad, and this is an action instituted against defendant to recover damages alleged to have been caused by the construction and operation of the railroad. The property of the plaintiff is situated on the northeast corner of Gaibbert Street and Wood Avenue and fronts 280 feet on Gabbert Street and 128 feet on Wood Avenue. 'She has an eight-room residence on the lot, and also a five-room dwelling house which she rents out to tenants, and a garage situated between the two houses. All these houses front on Gabbert Street, along which the railroad is constructed the entire length. Defendant also has erected a switch stand near the comer of plaintiff’s property. It is .alleged that by reason of the appropriation of said street by defendant for its roadbed, switches and switch stands, and the operation of the railroad along the street, plaintiff’s property has been diminished in value to the extent of the sum of $2,-000, for which sum recovery is sought.
The evidence .adduced by the plaintiff tends to show that the- occupancy of the street by the defendant-, in constructing iand operating its railroad, has obstructed the approaches to her -property and rendered it less accessible, and thereby caused depreciation in value to a considerable extent. Some of the witnesses testified that the property was depreciated at least one-half. The jury returned a verdict in plaintiff’s favor and assessed her damages -at the sum of $500, and the -evidence was sufficient to justify a finding that the property w.as damaged in a greater sum than that allowed by the verdict.
The evidence showed that the track was built along Gabbert Street the full length of plaintiff’s property, and that a switch stand came up within a distance of about three or four feet of her -property. The evidence showed that the only means of access to plaintiff’s property was along Gabbert Street, and that the occupancy of the street )by the railroad seriously obstructed the access to the property. Plaintiff testified that it was -almost impossible for any vehicle to get to her property on account of the ties and rails, and that it is necessary to get assistance in order to put a oar into the garage. .She also testified that the steam from the engines reached to the front porch, and that there were great inconveniences •and discomforts on account of the smell of smoke and steam, and the noises from passing trains — that the trains would pass at night -so close that the noise thereof prevented rest and sleep. Her testimony also was to the effect that it was difficult to find tenants whowerewilling to live in the house which she had for rent.
Counsel seem to rely particularly upon the case of L. R. & H. S. West Rd. Co. v. Newman, 73 Ark. 1, but the language of that case is, we think, against their contention. In that case we decided merely that a landowner whose property does not abut on the railway track, and the property is not rendered inaccessible by reason of such track, can not recover damages by reason of the railroad built along the highway leading from such property. Judge Riddick, in stating the law applicable to that case, said, page 3: “The rule of law governing cases of this kind is that no private action on account of an act obstructing a public and common right will lie for damages of the same kind as those sustained by the general public, even though the inconvenience and injury to the plaintiff be greater in degree than to other members of the public; but an action will lie for peculiar or special damage of a kind different from that suffered by the general public, even though such damage be small, or though it be not confined to plaintiff, but he suffered by'many others.”
Further on in the opinion it was said: “Now, in this case, none of plaintiff’s property abutted on that part of the street upon which the tracks were constructed. The railroad did not block the streets upon which it was constructed or prevent travel upon them. The access to plaintiff’s property was not taken away or rendered less convenient, though it is possible, as he claims, that, by reason of the fact that one end of the street upon which some of his lots abutted was occupied by the railroad, some travel was diverted from that end of the street upon which his property was located. But, notwithstanding the tracks of the company, the street, as before stated, was still open for travel and used by the public, and access to the property of plaintiff could be had, not only by it, but by a number of other streets, some of which had been improved and rendered much more suitable for travel than the street on which the tracks were laid, even before the railroad was placed there.”
The same doctrine is announced in other cases. Little Rock & Fort Smith Ry. Co. v. Greer, 77 Ark. 387; Cook v. St. Louis, I. M. & S. Ry. Co., 103 Ark. 326.
There can be no recovery in the class of cases merely for obstructing the street as a passage-way for travelers, inasmuch as that is a right which all persons share .alike; but there can be a recovery for injury to abutting property on account of the property being rendered less accessible or otherwise injured. That constitutes an injury to the property which is a character of injury not shared .by the public at large who use the street, though many other property owners may be injured in a like manner. In other words, the mere obstruction of the street is not sufficient to warrant a recovery unless there is injury to abutting property. Buit where the obstruction renders the abutting property less accessible, .and an injury to such property results from such obstruction, then there may be a recovery. The court submitted the case fairly upon that issue, and the evidence was sufficient to justify the finding in plaintiff’s favor.
There was no error in the court’s refusal to add a modification to the instruction to the effect that in order to justify a recovery, the jury must first find “that the damage or injury sustained by plaintiff is a special damage with respect to her property in excess of that sustained by the public generally.” The instruction which the court gave made it necessary to find a case of injury which was in itself a special damage to the plaintiff’s property, and it was therefore unnecessary to add the qualification mentioned above.
Judgment affirmed.
