42 Neb. 90 | Neb. | 1894
On the 5th day of May, 1890, Cornelius O’Connor sued the Chicago, Burlington & Quincy Railway Company (hereinafter called the “Railway Company”) in the district court of Cass county for damages, alleging that he was the owner of lot 13, in block 48, in the city of Plattsmouth; that said lot and the house thereon were used by him for residence purposes, and that said lot fronted west on Second street, a public thoroughfare of said city. The three material allegations in the petition were as follows:
“(6.) And plaintiff avers and complains that said defendant did, on or about the 3d day of July, 1886, by its agents and employes, well knowing the premises herein, and without any authority whatever from, or compensation to, plaintiff, and without any authority from any person or corporate body legally authorized to grant such authority, erect and maintain a switch track in such public thoroughfare, a fence of the height of about six feet immediately in front of said lot, and did so erect and maintain, and still maintains and uses constantly and daily, a coal shed and hoisting machine, and also did build, construct, and maintain, and so continues to do so, a side or switch track immediately in front of said lot, by reason of which said lot*95 is totally obstructed from view, and this plaintiff has for five years last past and is now daily prevented from using or enjoying said street upon which said track, switches, coal houses, fence, and other obstructions have been wrongfully placed by the defendant.
“(7.) That since the 3d day of July, 1886, and long prior thereto, the defendants herein, by their agents and employes, have wrongfully, and to the great damage of plaintiff’s property and enjoyment thereof permitted their car rolling stock to be loaded and unloaded with coal on said switch tracks, which is immediately in front of and ahuts on said residence property, and that said defendant now and since said time constantly permits its cars and rolling stock, trains, and locomotive engines to so obstruct the passage of said public thoroughfare and street as to completely isolate the plaintiff from the enjoyment thereof, and further compelling said plaintiff, in order to have free ingress and egress to Granite street, to use for a sidewalk his own property.
“ (8.) That during all of said time hereinbefore mentioned the said defendant, by its agents, servants, and employes, has permitted, and does now permit, its locomotive engines to whistle and ring bells at all hours of the night and day, to the great annoyance and damage of plaintiff’s property and the enjoyment thereof; and further, that by reason and as an immediate consequence of so permitting its heavy and ponderous engines and cars to run over said switch to jar and shake the said dwelling house, unfitting it for the purpose for which it was built, and thereby damaging the walls and plaster, necessitating constant repairing.
“(9.) And plaintiff further avers that said defendant, without any authority from, or compensation to, plaintiff, has caused to be laid across said property a water pipe, and in making excavations therefor tore down and ruined part of plaintiff’s fence and otherwise damaging said premises, and that it is now and has been in the habit of throw*96 ing the dirt and rubbish adjacent to and upon said premises, to the damage thereof, making the same by reason thereof nearly useless for a dwelling house.” . ,
The answer of the Railway Company, among other ;defenses, pleaded the statute of limitations; that is, that O’Connor’s cause of action did not accrue within four years immediately preceding the date of the bringing of the suit. O’Connor had a verdict and judgment and the Railway Company prosecutes error.
The evidence in the record tends to establish the following facts: That O’Connor became the owner of the property in the year 1885; that on this lot was a house sometimes used by O’Connor for a residence and sometimes rented by him to tenants, and that this lot fronted west on Second street, the same being one of the public streets of the city of Plattsmouth; that prior to the year 1877 the Railway Company laid its railway track in said street in front of the O’Connor property and had since been operating its trains on said track; that in the year 1877, 1878, or 1879 the Railway Company erected a coal house in Second street in front of the O’Connor property, and has since maintained said coal house at said place; that in the year 1886 said coal house was partially destroyed by fire, but was at once rebuilt; that said coal house had a capacity, of 40,000 tons; that the Railway Company built two side tracks in Second street so as to reach said coal house from its main track, — one of these side tracks was built more than four years before this suit was brought, and one was built within four years of the bringing of this suit; that the cars loaded with coal were run upon these side tracks and the coal unloaded into the coal house by means of a derrick or hoisting machine; that engines were run up on these side tracks to the coal house and stood there while the tenders were being loaded with coal; that the loading of coal into the coal house and loading it from the coal house into the engines caused dust to ensue and settle .on the O’Connor.
The court charged the jury, among other things, as follows: “If you shall further find from the evidence that the defendants have caused to be erected on said street, in front of plaintiff’s said property, a coal house where coal is unloaded from cars to said coal house and from said coal house into tenders of defendant’s engines, and by reason thereof great, unusual, and annoying noises are created, and smoke, dust, and cinders and ashes from the engines of the defendant standing by said coal house, are cast upon and across plaintiff’s said premises to such an extent as to interfere with the comfortable enjoyment and use of said premises, or depreciate the rental value thereof, then you should find for the plaintiff and assess his damages, if you find from the evidence that plaintiff has been so damaged, at such a sum as you believe from the evidence will fully compensate him for such injury to said property for a period not to exceed four years prior to May 5, 1890. In other words, gentlemen of the jury, if defendant constructed the railway tracks complained of more than four years prior to May 5, 1890, plaintiff cannot recover in this
The Omaha S. R. Co. v. Todd, 39 Neb., 818, was an action by a land owner against a railway company to recover damages for the amount of land appropriated by the railway company for a right of way and for the amount of damages sustained by the land owner to the remainder of his farm by reason of the appropriation of a part thereof, and it was held that the damages to which a land owner is entitled by reason of the construction of a railway across his farm are: (1) The actual value of the land taken at the time of the taking, without diminution on account of any benefit, or any set-off whatever. (2) The depreciation in value of the remainder of the farm, caused by the appropriation of a part thereof for railway purposes, and the , •construction and permanent operation and occupation of the railroad thereon, excluding general benefits; and that
In Omaha & R. V. R. Co. v. Moschel, 38 Neb., 281, it was held: “An action against a railroad company for damages to plaintiff’s real estate caused by the railroad company’s building its tracks and operating its road across the street and on a lot lying next to plaintiff’s property must be brought within four years of the date of the construction of such railroad.” “Where a railroad company, in 1880, built its railroad track and side tracks across a street and on a lot (owned by it) lying next to plaintiff’s property, and more than four years thereafter plaintiff brought suit against the railroad company for the depreciation in value of his lot caused by the building of such railroad, and its subsequent operation, and for subsequently building and operating additional tracks across said street and lot, held, (1) that plaintiff in no event could recover for any depreciation in the value of his property by reason of any acts of the railroad company, either in matters of construction or operation, the habitual doing, or the commencement of the doing, of which acts was at a date more than four years prior to the date of suit brought; (2) that the plaintiff could, and if he did or did not, within four years after
Now applying the principles enunciated in the foregoing cases to the case at bar, it is quite clear that at the time the Railway Company first laid its tracks in Second street in front of the O’Connor property there at once accrued to the owner thereof, if he was thereby damaged, a- right of action against the Railway Company. This fight of action would have been barred within four years from the date of thé Railway Company’s occupation of the 'street. If the owner of the O’Connor property had brought su'ch action, the measure of his damages would have been the depreciation in the market value of the lot by reason of the occupation of the street in front thereof by the Railway Company, and this depreciation in value would have been the difference between the market value of the lot immediately before and immediately after the construction of the railway; and in ascertaining this depreciation, the cuts or fills made in the street in front of the property; the proximity of the track to the front of the lot; the danger of fire from passing trains; the probability of damage to the house on the lot from the jars of passing cars and engines; the inconvenience to the occupants of the property by the presence and proper and ordinary use of the railway track; the annoyance from smoke, cinders, and dust from passing trains and engines; the noises from the proper operation of the road, such as the roar of trains, the sounding of whistles, and the ringing of bells, would have all been elements for consideration in determining how much the occupation of the street by the railway had diminished
The erection and use of the coal house in the street in front of the O’Connor property in 1878 or 1879 was an additional burden thereto, and invested the then owner of said property with a right of action for damages against the Railway Company by reason thereof. That right of action was barred within four years from that date. And ¿he measure of damages to the owner of the O’Connor property by reason of the erection of said coal house and its use was the depreciation caused by reason of the erection of the coal house and its original and proper use for all time; and in arriving at the amount of this depreciation or damage, the proximity of the coal house to the property, the capacity of the coal house, the danger from fire, the annoyance from soot and smoke and coal dust, the probable damage to the house on the property from the jars caused by passing trains and engines, were all competent and proper elements for consideration. All these things were within the realm of results that would naturally flow from the proper and ordinary use of the coal house, and were involved in and a part of the damages sustained by the O’Connor property by reason of the location and use of the coal house. Coal could not be loaded into nor out of said coal house without making a dust. The coal could not be brought to the coal house except on cars pulled by engines. These engines could not be present at the coal house, either for the purpose of hauling coal there or for taking on a supply of coal, without the usual accompaniments of smoke, steam, cind'ers, the ringing of bells, and the sounding of whistles. We conclude, therefore, that where the owner of a lot fronting on a street sues a railway company for damages to his lot by reason of the erection and use in said street in front thereof of a coal house, the owner’s measure of damages is the depreciation in the market value of his real estate caused by the erec
There remain in the case a few points for disposition. As already stated, the evidence shows that within four years prior to the bringing of this suit the Railway Company -constructed in the street opposite the O’Connor property an additional side track for use in connection with its coal house. This did not confer upon O’Connor any cause of action'against the Railway Company. If a railway company condemns real estate for the erection thereon of a road, and builds one track thereon, then we are of opinion that the building of one or more additional tracks on the same right of way and on the same profile or grade, should be construed to be within the purview and purposes of the original condemnation; but, as already stated, the evidence tends to show that the Railway Company, within four years ■of the suit brought, laid a water pipe across the O’Connor lot and built a fence between the front of it and its coal house and the street. The building of this fence and the laying of this water pipe were not elements that might have been considered in determining O’Connor’s damage to his property by reason of the original location of the coal house in the street in front thereof. They were not things that would naturally or probably result from the proper and
The judgment of the district court is reversed and the-cause remanded.
Reversed and remanded.