52 Tex. Civ. App. 575 | Tex. App. | 1908
— On the 12th day of June, 1907, the appellants, Louis Heilbron and M. C. Wade, began this suit in the District Court of Bowie County, seeking to recover of the appellee damages in the sum of $10,000, which, it is alleged, resulted from the deepening and widening of a cut in the appellee’s right of way adjacent to their property.
The J. W. Johnson survey is a tract of land near the city of Tex
At the conclusion of the testimony the court instructed a verdict for the railway company; and from the judgment so entered this appeal is prosecuted.
The only assignment of error presented in the record complains of the peremptory instruction directing the verdict for the defendant. The owners of the property testified upon the trial that since the excavations made by the railway company at Bed Cut the market value of their property has greatly depreciated, estimated at about one-third of its original value. In order, therefore, to sustain the judgment of the trial court, it is essential that the facts show this to be a case of damnum absque injuria.
As a basis for their right of recovery the appellants urge that the old road on the north side of the railway right of way was a public highway in which they, together with the general public, had an easement, and that its destruction seriously interfered with the travel to and from the addition which they had platted. They also claim that Britton Avenue, the strip which they had dedicated, was menaced and rendered unsafe by the proximity of the cut and the process of caving of the banks since the cut was made. It is contended by them that the evidence adduced upon the trial which tended to establish those facts, was of such weight that .the issue made should have been submitted to the jury.
If the old road before mentioned had been dedicated to the public, as claimed by the appellants, and was a public highway in the sense that the public generally had an absolute right to have it kept open and free from obstructions, the testimony showing as it does that it had been practically destroyed by the railway, then it must be admitted that the appellants had a cause of action, because, we think, the testimony would support a finding that the property had been damaged by
There are various methods by which a public highway may be created or established. It may be by dedication by the owners of the fee; or it may be acquired by long use by the public, carried on in such a manner and persisted in for such a length of time as to give a right by prescription or limitation; or by being laid out and established by the municipal authorities in accordance with statutory provision. In this action the appellants have specifically alleged that the road had been “dedicated” to the public use; but in their argument they also insist that it became such by prescription. These two methods of acquiring an easement over the land of another are essentially different. Dedication is a setting apart by the owner for public use; while prescription is based upon a hostile use. Ramthun v. Halfman, 58 Texas, 551; Elliott on Roads and Streets, sec. 175. We have failed to find in the record any evidence of a dedication of this old road to public use.
Assuming that the deed from Mrs. Ball to the railway company had the effect of conveying only her undivided one-half interest in the strip of land designated, still it had the effect of vesting that interest in the railway company and of making it a tenant in common with Mrs. Estes as to that portion of the land. Ho one could complain of the railway company’s entering upon and making exclusive use of this land, except Mrs. Estes. After that conveyance no valid dedication could have been made, even by Mrs. Estes, of any part of the land upon which this right of way was located, without the consent of the railway company. It does not appear that any such attempt upon. her part was ever made. There was offered in evidence by the appellants a map or plat of the Johnson survey, made at the time of the partition between Mrs. Ball and Mrs. Estes, showing the various subdivisions into which the tract had been divided. This plat shows two parallel lines marked across it, which, though not designating what it is intended to represent, may be regarded as indicating the railway right of way. On each side of these marked lines is written “narrow gage street,” showing that the owners intended that there should be a space for streets on each side of the railroad. There is nothing to indicate what width they intended those streets to be, nor is there anything to show that they intended to locate them upon the railroad right of way. In the absence of proof to the contrary, we think it may be safely assumed that if they intended to dedicate a strip of land on each side of the railway for public use, it was such land as'they could lawfully dedicate, and hence was not upon the right of way. In order to constitute a dedication of private property for a public use it must clearly appear that the owner of the property intended to absolutely and irrevocably set apart the land for public use. Ramthun v. Halfman, 58
Neither do we think there was sufficient evidence to warrant a finding that a right of way had been acquired by the public by prescription, as is insisted by appellants’ counsel. The testimony tended to show that this old road was merely a neighborhood road; that it had never been worked as a public road, and no authority was exercised over it by the municipal government; that it had been there since about 1881; that it was traveled by any one who wanted to do so, and that no objection was ever made to its use. It is further shown that the railway property was not fenced at that point, but that on the north side of the railway right of ivay embankments of dirt had been thrown up, variously estimated at from four to six feet in height, when the origin'al cut was excavated. How much travel passed over this old road is not known. There is nothing to indicate that it was more than a neighborhood passway and used as a matter of convenience merely by the inhabitants of that particular locality on the right of way of the railway, being used without objection by the public in a manner that did not interfere with its use by the railway company itself. The question then is, is this sufficient to sustain a finding that the public had acquired by prescription? We think not. It is a well established principle of law in this State that the permissive use of a road or way for any length of time does not ripen into the right. Ramthun v. Half-man, 58 Texas, 551; Worthington v. Wade, 82 Texas, 28; Gilder v. City of Brenham, 67 Texas, 346; Stewart v. Frink, 55 Am. Rep., 618; Jones on Easements, sec. 282; Elliott on Roads and Streets, see. 130. In this instance we feel that the testimony was sufficient to show only that the road had been used by the acquiescence and permission of the railroad. To hold that the mere use by the public, without objection, of a portion of a railway right of way, and continued during the statutory period of limitation, or for twenty years, would cause the railway company to lose the use of its property which it may need for legitimate purposes connected with its operation, would cause unutterable confusion and bring about in this State a condition of affairs which would seriously interfere with railway traffic. A railroad is itself a public highway, constructed and operated for the public benefit, and some courts have gone so faT as to hold that a right by prescription, or limitation, can not be acquired against a railroad to any portion of its right of way. Southern P. Ry. Co. v. Hyatt, 54 L. R. A., 522; Northern P. Ry. Co. v. Smith, 171 U. S., 260; Jones on Easements, sec. 281 and authorities cited in note. There are many portions of railway tracks and rights of way, especially around and near depots in cities and large towns, where the public use the right of way for passing to and fro continuously, and where such use has been kept up in some cases far beyond the period of time necessary to create an absolute easement; yet no court in this State has ever treated such persons, when injured while using the railway right of way, as more than licensees. To hold that they had the same rights there which they would have if they had acquired a right by prescription to the use of
If we are correct in holding that the old road was not a public highway, in the sense that the public had an absolute right to its continued use, then there is but one other issue involved, and that is, were the excavations made by the railway company of such a character as to interfere with the free use and safety of Britton Avenue ? We are not unmindful of the rule that private property can not for a public purpose be taken, damaged or destroyed, without compensation, and that this has been extended so as to protect the rights of an adjacent owner whose land is not actually invaded by railway companies from certain damages incident to the proximity of the railroad to his premises. Gainesville, H. & W. R. Co. v. Hall, 78 Texas, 172. It has been held that in the absence of some legislative or constitutional provision, similar to that which is incorporated in ours, corporations organized and acting for a public purpose, having legal authority to construct lines of railway, might be immune from liability for consequential damages inflicted upon private property. 4 Sutherland on Damages (3d ed.), see. 1061. To place railways and other corporations exercising public or quasi public functions upon the same jflane as to liability for such damages with private persons, was the purpose of our constitutional provisions prohibiting the taking, damaging or destroying private property for a public purpose without compensation. Since the adoption of that provision railways and other such corporations stand in the same attitude as to liability with private persons. Gainesville, etc., Ry. Co. v. Hall, supra; Jordan v. Benwood, 36 L. R. A., 519. We understand the rule to be that in order to constitute a damaging of private property, within the meaning of our constitutional provision, there need not be actual invasion, but there must be an interference with its free use and enjoyment, the production of some physical inconveniences, discomfort or detriment. Aldrich v. Metropolitan West Side Ry., 57 L. R. A., 237; 15 Cyc., 656, and cases cited in note 16. One of the appellants, testifying in answer to the question as to how his property had been injured by the deepening and widening of the cut, stated that it was unsightly and dangerous. We do not think it will be seriously contended that the unsightly appearance of adjacent premises can give the property owner any right of recovery. Whatever the appellants’ property may have derived in point of value by reason of the beauty of the scenery, or the attractiveness of the surroundings occasioned by the condition of the appellee’s property, was not derived legitimately from the use of their own, but, to that extent, from the use of the adjacent property. One property owner is not bound to keep his premises attractive for the delectation of his neighbor, nor is he compelled to refrain from making them unattractive lest he might offend his neighbor’s esthetic sense. So long as his use of the premises does not interfere with the use by his neighbor of the latter’s own premises, there
ON MOTION FOR REHEARING.
In their argument on motion for rehearing counsel for appellants contended that whether or not the excavations made by the railway company were such as to render travel upon Britton Avenue dangerous, was a material issue in the case; and that if the evidence tended to establish that fact and was of sufficient probative force to sustain a finding thereon, it should have been submitted to the jury. That conclusion is probably a fair inference from the language we used in the original opinion; and if so, it was misleading. We do not think that even if it be conceded that Britton Avenue was rendered unsafe for travel, it would logically follow that appellants were entitled to recover damages under their pleadings in this case. Britton Avenue was a public highway, upon which some of the appellants’ property abutted. The only right which appellants had in that highway, for the deprivation of which they would have a cause of action, was the right to its use as a means of ingress and egress to and from their property adjacent thereto. It is a well established rule of law that for the destruction or obstruction of a public highway a private party can not maintain an action for damages unless he alleges and proves that he has sustained some special injury thereby which is different in kind and degree from that which results to the public at large. 2 Cooley on Torts, 1292-1294; Jones on Easements, par. 543. In this suit the special injuries relied upon consist in the permanent injury to the freehold, the depreciation in the market value of the realty. This is the only injury alleged or proven. It therefore follows that unless the condition and proximity of the excavation, not only interfere, with the
In the case last above cited the court said: “The inquiry should have been as to whether or not the defendants had caused a permanent and irremediable injury to plaintiffs property; if so, he was entitled to compensation in this action for all injury, present or prospective. If, on the other hand, the injury was temporary in its character, and capable of being avoided in the future without permanent injury to the plaintiffs freehold, the case was one of a continuing nuisance, and damages should have been restricted to the commencement of the action.” In those cases where the depreciation in the market value of the realty is made the basis of measuring the damages, a recovery is permitted for prospective, as well as permanent, injuries. This is justified solely upon the theory that, so far at least as the complaint is concerned, the conditions which have caused the injury are lasting and irremediable.
Applying that rule of law to the facts here involved, it will be seen that it is not enough to warrant a recovery in this case that it be shown that Britton Avenue is menaced by a dangerous nuisance, but it must further appear that this situation is necessarily or in all probability permanent. Here we must distinguish between the cut, or excavation, as a fixture, and the danger arising from its proximity to the highway in an unguarded condition. While the railway company had the right to make the excavation in the manner it did, because it was upon its own land, yet if in doing so it has approached so near Britton Avenue as to render travel thereon dangerous it would be guilty of negligence, not necessarily in making the excavation, but in not restoring the highway to a safe condition by sufficiently guarding travelers against the precipice. It will not be contended that the maintenance of this excavation in an unguarded condition was essential to the power and legitimate use of its property by the railway company. If the highway bordering thereon is rendered unsafe for travel we see no reason why the company at the instance of the proper parties, those receiving special injury, may not be compelled to restore it to a safe condition. The facts in,evidence in this case, if found sufficient to show an interference with travel on Britton Avenue, present a situation which can be remedied, or a nuisance that may be abated. Sanders v. Miller, 113 S. W., 996, recently decided by this court, and cases cited. For those reasons no damages are recoverable for prospective injuries, such as are necessarily implied when the depreciation in the market value of the realty is made the basis; and in this case, no other special injuries having been alleged or proven, there was no issue upon which a jury would have been authorized to pass.
There is no evidence going to show that travel on Britton Avenue had ceased or had been lessened by the presence of the excavation. One of the appellants’ witnesses testified that it was impassable by reason of the ditch or drain caused by some of the property owners concentrating the flow of water across the avenue toward the cut.
We do not think there is any good reason for changing our former holding, and the motion for rehearing is therefore overruled.
Affirmed.
Writ of error refused.