Meridian Light & Railway Co. v. Slaughter

53 So. 952 | Miss. | 1910

Anderson, J.,

delivered the opinion of the court.

This is the second time this case has been before this court. On the former appeal it will be found reported in 48 S. R. 6; and again, in 48 S. R. 1040, 95 Miss. 251, Ihe latter opinion being in response to a suggestion of error, which was sustained to the extent that the reversal was put on a different ground from that of the first opinion. It was first held that, under section 17 of the Constitution, providing that private property shall not he taken or damaged for public use except on compensation being first made, the street railway company was an additional burden on the street, and for which an abutting owner was entitled to additional damages; and in response to the suggestion of error it was held (Quoting the syllabus, which clearly states the holdings of the court):

“A street railway company, constructing and operating a street railway in the center of a twenty-three foot roadway of the street, and thereby leaving but two inches of space between the body of the cars and the hubs of an-ordinary standard wagon, destroys the use of the street for all purposes excepting the use for cars, and seriously interferes with the ingress to and egress from abutting property; and one owning substantially a block abutting on the street may recover the special damages sustained, though it be assumed that a street railway in a street does not impose an additional servitude.”

The facts of the case when here on the former appeal will be found clearly and fully stated in the two opinions of the court above referred to. It is deemed necessary to add thereto only paragraph 3 of the prayer to the original bill:

“That if it be found that the said excavation of said avenue and the construction and maintenance of said track therein, and the operation of its cars thereon have the effect to destroy the approaches to the premises of your oratrix, and of ready and easy means of ingress and egress from said avenue through said alley, and if it be found that the use of said street for travel and for the usual and ordinary purposes to which the public, and to which your oratrix, as part of the public, and as an abutting owner, is legally entitled to devote to the public thoroughfare, are obstructed and impaired, then that defendant be perpetually restrained from its said appropriation and monopoly of said street, and that the defendant, by mandatory injunction, or other proper order, be required to remove its said tracks from said avenue or from so much thereof as abuts the said property of your •oratrix, and restore the said avenue to the grade and condition thereof next preceding the date of construction of its said track and of making excavation thereof for the purpose thereof.”

. On being reversed and remanded, the appellants, by leave of court, filed an amendment to its answer to the •original bill in which was stated the result of the litigation up to that time, and containing this paragraph:

“The defendant shows to the court, in accordance with the prayer of the original bill in this cause, and since the supreme court has declared its railway a nuisance, it, the said defendant, now joins in said prayer, or so much thereof as prays that this defendant may remove its track from Twelfth avenue in front of said complainant’s property and abandon the running of cars over and along said track which traverses Twelfth avenue, defendant averring it was not its intention to' place a nuisance on the said avenue at the time it laid its track and begun to run its cars thereon.”

And setting up further that the appellee was not damaged by the maintenance and operation of the street railway along the avenue on which her property abutted. This amendment to the answer was made a cross bill; the material allegations of which were denied by the appellee. On the trial appellant introduced testimony tending to establish that the property of the appellee was not •damaged by the use of the street by appellant, but rather •enhanced in value. The appellee introduced testimony, all of which was directed to the question of permanent damage to her property by the continued maintenance and operation of the street railway by appellant. There was a decree for appellee for one thousand dollars for permanent injury to her property. The' prayer of the bill joined in by appellant, in its answer and cross bill,is disregarded by the decree. From this decree appellant appeals.

The contention of appellant is that the court erred in decreeing damages for permanent injury to appellee’s property; that instead, a decree should have been rendered abating the nuisance, and enjoining its,further maintenance, and awarding damages alone for the injury done up to the time of such decree.

The citation of authorities is deemed unnecessary to sustain the proposition that a party maintaining a nuisance to the damage of the real property of another may voluntarily abate such nuisance, and thereby avoid liability for permanent injury to such property. The prayer of appellee’s bill is that if the court should find that the continued maintenance of the nuisance by appellant would destroy the “ready and easy” ingress and egress to and from her property; and that the use of the avenue for the ordinary travel would be impaired, a decree be rendered abating such nuisance and enjoining appellant from its further maintenance; in which prayer appellant joined in its amended answer and cross bill. That is exactly what this court held to be the facts, and in addition, that its maintenance destroyed the use of the street for all purposes except that of appellant’s cars. Slaughter v. Meridian Light & Ry. Co., 48 S. R. 1040, 25 L. R. A. 1265 (N. S.). May not the appellant ask the court to decree that to be done which appellant could have done voluntarily before suit? And especially if the granting of such prayer is equivalent to confessing •the allegations of appellee’s bill, and joining in the prayer thereof? Why should appellant be made to pay damages for permanent injury to appellee’s property, when it is willing and anxious to desist from further injury? Our judgment is that the contention of appellant is eminently just.

The court should have granted the prayer of appellee’s bill so joined in by appellant. The decree should have been for tbe abatement of tbe nuisance, and enjoining its further maintenance and operation, and awarding tbe appellee damages for injury to ber property up to tbe time of sucb decree. Reversed cmd remanded.