36 Mo. App. 254 | Mo. Ct. App. | 1889
Lead Opinion
delivered the opinion of the court.
The record in this case shows that, in 1.881, the defendant constructed its railroad through St. Louis county; that the defendant secured the right of way for its road through the lands of Mrs. Keating, and those of Peter Huthmacher, adjoining on the east, and that the defendant’s road was constructed through these lands from east to west. There was a public road running east and west along the north line of Mrs. Keating’s and Huthmacher’s land. The plaintiffs owned a farm south of Mrs. Keating’s and Huthmacher’s land,
On the twentieth day of October, 1887, the plaintiffs brought this suit in the circuit court of St. Louis county, which was by change of venue taken to the circuit court of St. Charles county.
For a cause of action, they allege that the defendant in constructing its railroad obstructed the highway above referred to and rendered the crossing of the railroad dangerous, impracticable and inconvenient; that
The ascertainment of the nature and character of the plaintiffs’ action will furnish a satisfactory solution of the question raised by this motion. If the obstruction complained of by the plaintiffs and if the damage inflicted on the plaintiffs’ property rights, are of a permanent character, and if the continuance of the obstruction is necessarily a continuous injury, then the plaintiffs’ whole injury is suffered at once, and it presents but one cause of action. Van Hoozier v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 575.
The character of the obstruction is not directly averred, but the fair inference is (from the facts stated), that the obstruction is of a permanent character, and that the maintenance of the nuisance will necessarily prove a continuous source of injury to the plaintiffs’ land. In such a case, the entire damage suffered by the plaintiffs ought and must be adjusted in one pro. ceeding.
But if we concede that the obstruction was only temporary, and that the injury to the plaintiffs’ property would not necessarily continue, and that the plaintiffs were confined in this action to the damages sustained by them to the time the suit was begun, yet the defendant’s motion was properly overruled. In such a case the plaintiffs might have brought a suit for each day the obstruction was allowed to remain, or else they might have waited (as was done), until they had suffered a series of injuries, and then sought redress for them in one action. Bird v. Railroad, 30 Mo. App. 374. There can be no warrant for saying, in such a case, that the plaintiffs’ damages should be divided into yearly periods, and that therefore the plaintiffs should be compelled to allege their damages- for each year in a separate count. Why not divide the damages into monthly periods \ In any view we may take of this case, the defendant’s motion was properly overruled.
There was a trial of the case before a jury, resulting in a verdict and judgment for the plaintiffs. The defendant, having failed to obtain a new trial, brings the case to us on appeal, and alleges- the following reasons why the judgment should be reversed.
I. Counsel for the defendant urged that the petition fails to state a cause of action, because the plaintiffs have failed to allege the character of the road
II. That the evidence was not sufficient to show a dedication of the road as a public highway, and there was no evidence to support the theory that the road was a private way and belonged to the plaintiffs. We will consider these two assignments together. There was no direct evidence in the case that this easement had ever been granted to the plaintiffs or their grantors ; nor was there any evidence that the road had ever been by proper proceedings declared a public highway, or that it had ever been recognized as such by the county authorities ; that is, it had never been worked or repaired at public expense. Whether it was a private road, belonging to the plaintiffs, or a public highway, depended, in either case, on title by prescription. It is a difficult matter to say or determine from the evidence preserved in this record, whether the easement is a public or private one. But it can be safely said, that the testimony leaves but little doubt that it was in fact one or the other ; and it can make no possible difference to the defendant, whether the road is public or private. If it is a public highway, then we think the evidence is sufficient to show a right of action in the plaintiffs, because this road was the only outlet from their farm, and that they, for this reason, suffered special injury or damage growing out of the obstruction. If it was a private road, and the plaintiffs had obtained title thereto by adverse user, and the use or occupation was a matter of right, as distinguished from a mere license,
The building of the railroad across the roadway, and the deflection of the latter by the defendant in order to secure a crossing did undoubtedly (under the evidence) have a tendency to depreciate the value of the plaintiffs’ farm. The crossing itself was not only dangerous and difficult of access, but the road, as changed by the defendant, extended along either side of the track, and within fifty feet of it, for the distance of one hundred yards, making this part of the road very dangerous on account of moving trains. And on account of the situation of the ground, and the fact that telegraph poles were planted in the middle or near the sides of the passway, it was only possible to haul small loads' over the road.
There was sufficient evidence to authorize the court to submit the questions to the jury, whether this had become a public road by prescription or whether the plaintiffs had acquired title, or the legal right to use the same, by an adverse occupation. There was no question but that the road had been used for many years not only by the plaintiffs since their purchase in 1865, but long prior to that time by the plaintiffs’ immediate grantor. The only question was as to the character of the use. If the use was under a license from Mrs. Keating, the owner of the servient estate, then the fact that the plaintiffs and their grantors used the road, and that the public was in the habit of travelling over it, as the evidence shows, would not be sufficient to vest
George Autenrieth, one of the plaintiffs, testified, that he bought the farm from John Hoffman in 1865 ; that since that time he had used this road as an outlet from his farm to the public road; that he had no other passway, and that his right to use the road had never been questioned; that the public to some extent had used the road during the time. John Hoffman, the original owner,- testified that he sold the land to the plaintiffs in 1865, and that he and the public had used this road for many years before this. He said that it was always considered a public road. There was other testimony as to the use of the road, but the portions referred to are sufficient for the purposes of this discussion. On the other hand, P. D. Keating, a son of Mrs. Keating, the owner of the land over which the road runs, testified that the plaintiffs h ad never bought or paid for this road, but had only used it with the permission of his mother. This evidence made an issue of fact, as to the character of the plaintiffs’ occupation or use of the road, and the jury having found this issue for the plaintiffs, we cannot interfere.
Our conclusion is that there was substantial evidence tending to establish a right of action in the plaintiffs, and as there was no misdirection of the jury as to the law in the case, we will have to rule against the defendant on this assignment.
III. The last position assumed by the defendant is, that if it be conceded that the road is a public highway or a private road, and that the defendant obstructed and deflected the same in the construction of its road, yet it is not liable in damages, because it constructed the best crossing possible under all the circumstances.
IV. The only substantial error committed by the court was iu the instruction as to the measure of damages. Both the plaintiffs and the defendant asked the court to instruct the jury that the plaintiffs could only recover the actual damages sustained prior to the commencement of the suit. We think that the correct rule for measuring the damages in this case was the difference, if any, in the value of the land before and after the building of the-railroad.
The testimony in this case shows that the obstruction complained of is permanent in its character, and that the plaintiffs’ damages are certain and continuous. Chouteau v. City of St. Louis, 8 Mo. App. 48; Pinney. v. Berry, 61 Mo. 359; Benson v. Railroad, 78 Mo. 512; Van Hoozier v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 575. The entire damage in such cases must be recovered in one action.
In overflow cases arising from the negligent construction of railroads, the rule is different, and prospective damages can not be shown, for the reason that the injury is not certain and continuous. During one year, there might be no overflow at all, and the next year the land-owners’ crops might be swept away by disastrous floods. Under such circumstances, it is very apparent that an attempt by a court to ascertain and determine permanent damages to the freehold would be a mere matter of speculation. But, in the case at bar, the
The judgment of the circuit court will have to be affirmed.
Concurrence Opinion
delivered a concurring opinion.
I am of opinion that the evidence in this case is insufficient to show, under the decision in Brinck v. Collier, 56 Mo. 160, that the road in question had become a highway, by adverse use on part of the public. At the same time, I am of opinion that it is sufficient to show a private easement of way in favor of the plaintiffs, and those under whom the plaintiffs claim. For the obstruction of such easement, the defendant is liable.
The injury to the way under the conceded facts was of a permanent character. The defendant’s experts testified that the road could not be re-established at or convenient to the old crossing, owing to the topography of the ground, while the plaintiffs gave evidence that they could not obtain an equally advantageous outlet, without an outlay disproportionate to the value of the farm, and vastly exceeding the amount of the plaintiffs’ recovery in the case. In such event, the amount of the plaintiff’s recovery is determined by the depreciation caused by the obstruction in the value of the land. It is true the case was put to the jury on another theory as to the measure of damages, but upon one admittedly more favorable to the defendant; hence the defendant cannot complain. As the plaintiffs’ petition claims damages for permanent injuries, and as they might have recovered such damages in this action, their recovery is necessarily a bar to any further action either for temporary or permanent injuries.