61 P. 453 | Or. | 1901
delivered, the opinion.
This is an action to recover damages caused by a portion of the plaintiff’s land sliding into an excavation made by the defendant company in the repair of its railroad. The verdict and judgment were for the plaintiff, and defendant appeals.
The facts, so far as material, may be briefly stated thus : In June, 1897, the defendant, desiring to straighten or change its track through the premises of the plaintiff, obtained a deed from her for a new right of way. Thereafter, in making the proposed change, a cut or excavation was made in the right of way so acquired, from twenty-five to forty feet in depth, through the foot of a hill or steep incline. It is alleged that, without taking any precaution to prevent the plaintiff’s land from sliding into such excavation, the defendant negligently and carelessly fired heavy blasts in the vicinity, whereby one and one half acres of her land were made to slide into and towards the excavation, another tract was undermined, access from one part of her premises to another was cut off, and a valuable spring of water destroyed. The defendant in its answer denies the negligence charged, alleges that its road -was constructed in a careful and prudent manner, and pleads that plaintiff is estopped by her deed from claiming any damages on account of the injuries mentioned. The court below ruled that plaintiff could not recover without proof of negligence, but denied defendant’s motion for a nonsuit on the ground that no such proof was offered or admitted. This ruling and the refusal to give certain instructions on the subject of negligence constitute the errors relied on for reversal of the judgment.
The questions thus raised are unimportant if the rule is, as contended by the plaintiff, that the defendant’s
There is a conflict in the authorities as to whether this rule applies to railroad companies in constructing their roads over .a right of way acquired by condemnation or grant, but we believe, with Mr. Elliott, that “the weight of authority, however, in accordance with what seems to us the better reason, is to the effect that the destruction of such lateral support by excavating on the company’s own land so near that of the adjoining owner as to cause his land to slide into the excavation is a taking for which he is entitled to compensation, regardless of any question of negligence on the part of the railroad company” : 3 Elliott, Railr. 1406. Mr. Lewis, in discussing this question, says : “If, in the execution of public works under authority of law, excavations are made, and the soil of an individual gives way in consequence of being deprived of its lateral support, there is a taking to the extent of such deprivation, and the individual is entitled to compensation for the resulting damage. The right of lateral support is a part of his property in the land, as much so as his right of user or of exclusion. When he
In Roushlange v. Chicago & Atl. Ry. Co. 115 Ind. 106 (17 N. E. 198), the company acquired by purchase a right of way across the plaintiff’s land. In the construction of its road, it made an embankment on some marshy ground, causing an upheaval of the land adjoining the right of way, and rendering several acres worthless. It was held that the plaintiff might recover without charging negligence, the court saying : “ The general rule is that, in the construction of its road upon an acquired right of way,' a railway company is not liable beyond the compensation assessed or agreed upon, where such compensation is fixed prior to the building of the road, unless it is guilty of negligence in such construction. That rule, however, must be limited to cases where the railway is constructed upon and within the limits of the right of way so acquired. Clearly, if a railway company should condemn or purchase a right of way of a certain width, and pay the damages assessed or agreed upon as resulting from the construction of its road upon that strip, it could not successfully claim the right to so construct its road as to cover land outside of the limits of such strip without the payment of additional compensation or additional damages resulting from such construction. If that were so, the company might condemn a strip of land
A leading case upon the question as to what constitutes a taking, within the meaning of the constitution, is that of Eaton v. B. C. & M. R. R. Co. 51 N. H. 504 (12 Am. Rep. 147),— an action for injury to plaintiff’s land from the waters of an adjacent river, in times of freshet, flowing through a cut made by the railroad company, thereby flooding the land, and bringing down and lodging upon it quantities of earth and stone. It was conceded in the case that “if the cut through the ridge had been made by a private landowner, who had acquired no rights from the plaintiff or from the legislature, he would be liable for the damages sought to be recovered in this action.” The vital question, then, was whether the injuries complained of amounted to a taking of the plaintiff’s property within the constitutional meaning of those terms, and the court held, in an elaborately considered opinion, which examines, classifies, and analyzes nearly, if not quite, all the cases on the subject then extant, that the plaintiff was entitled to recover, and that the injury to his land was a taking, within the meaning of the consti