22 Neb. 343 | Neb. | 1887
Lead Opinion
The defendant in error brought an action against the plaintiff to recover damages for the negligent and wrongful construction of its bridge across the Platte river, whereby it is alleged that in March, 1886, a gorge was formed above the bridge, which threw the water of the Platte river out of its course, over the lands of the defendant in error, and thereby caused him a large amount of damage. The railroad company demurred to the petition upon the grounds that the facts stated therein were not sufficient to constitute a cause of action. The' demurrer was overruled, and the company declining to answer, a judgment was rendered against it for the sum of $1,000. It now prosecutes a petition in error in this court, the question being: Does the petition state facts sufficient to constitute a cause of action ?
It is alleged in the petition that “the said defendant now is, and ever since the year 1875 has been, a corporation duly incorporated and organized under and pursuant to the laws of the state of Nebraska, and ever since the year 1877 has been the owner of, and engaged in running and operating, a railroad leading from Valley station, in Douglas county, to Lincoln, through the counties of Douglas, Saunders, and
The plaintiff in error contends that there is no sufficient allegation that the bridge was negligently constructed, and that it forms an unlawful obstruction in the Platte river. The allegations in the petition as to the negligent construction of the bridge, and that it forms an unlawful obstruction in the river, are not as definite as they might be made, but under the liberal rules of construction of the code they will be held sufficient to justify a recovery.
The plaintiff in error contends that the insertion of the words “ or damaged ” in section 21, Art. I. of the constitution of 1875, restricts the right of recovery to such damages as reasonably may have been anticipated at the time the structure was erected. The rule contended for was not taken into consideration by the constitutional convention in amending the section named. It is a matter of regret that the proceedings of the constitutional convention were not published, but it is a matter of unwritten public history of the state that the section above quoted was reported by the committee having it in charge without the words “ or damaged ” inserted therein, and the words “ or damaged ” were inserted in open convention, on motion of a member, to cover a class of cases not embraced in the former section, as where no property of the party injured had been taken. It was intended to furnish an additional remedy, not to curtail or restrict any right which previously existed, and the language will not warrant the narrow construction contended for. This action is brought to recover damages for a bridge alleged to be negligently and unlaw
But it is contended that the plaintiff below being the grantee of Ballou, who owned the land when the bridge in question was constructed, the present owner cannot, therefore, recover. This position, however, is untenable. If the bridge in question is a nuisance and unlawful obstruction in the river, then every continuance of’ such nuisance is a new nuis.ance, for which, when damages have been sustained, an action may be maintained, the recovery being limited to such damages as have accrued before the action was brought. Beswick v. Cunden, F. Moore, 353. Cro. Eliz., 402. Penruddock's Case, 5 Co. Rep., 102. 3 Bla. Com., 220. Rosewell v. Prior, 2 Salk., 460. Fay v. Prentice, 1 C. B., 828. Bowyer v. Cook, 4 Id., 236. Holmes v. Wilson, 10 Ad. & El., 503. Thompson v. Gibson, 7 M. & W., 456. McConnel v. Kibbe, 29 Ill., 483. S. C., 33 Id., 175. Staple v. Spring, 10 Mass., 72. Hodges v. Hodges, 5 Met., 205. Baldwin v. Calkins, 10 Wend., 167. Beidelman v. Faulk, 5 Watts, 308. Blunt v. McCormick, 3 Denio, 283. Cumberland, etc., Corp. v. Hitchings, 65 Me., 140. Thayer v. Brooks, 17 Ohio, 489. Beach v. Crain, 2 N. Y., 86. 1 Sutherland Damages, 202. Gould on Waters, sec. 387.
It is said, however, that one recovery will bar a future action. This, in many cases, no. doubt, is true, as if a railroad had been constructed along a street in front of the
Judgment affiemed.
Dissenting Opinion
I cannot concur in the conclusion of the majority of the court, or the reasoning of the chief justice by which it is. reached. The case of O. & R. V. R. R. Co. v. Brown, 14 Neb., 170, was an action for damages alleged to have been caused by the same bridge involved in the case at bar, in the spring of 1881. In that case the trial court instructed the jury: “That, notwithstanding the fact that the railroad' company, when it constructed its bridge, did so in a prudent manner, according to the best information it could obtain at the time of its construction, yet, if it subsequently appeared that its construction was such that damages would result from the gorging of ice against the bridge, and that, damages would result to the plaintiff and other property-holders in the vicinity of the bridge by reason of the overflow of ice and water in consequence of said gorge, and the-defendant had time and opportunity and means, by a reasonable effort on its part in that behalf, to avoid or prevent-such damages, it was its duty so to do, and it was required to use all such reasonable effort to avert such damages, and, if it failed so to do, itis liable to plaintiff for the damages sustained by him as resulted directly from such failr ure.” This court held the above instruction to be erroneous, and for that reason reversed the judgment of the-district court.
But if it was the object of the pleader to attack the original construction of the bridge, I do not think the petition sufficiently intelligible as to whether it seeks to charge the railroad company with negligence in building a bridge at the point where they did, or in building the kind of a bridge which they did.
The majority of the court, I think, understand the petition to charge the railroad company with keeping and maintaining a nuisance in the bridge in question. Of course, no one will contend that a railroad bridge across the Platte river,, at or near the site of this one, isa nuisance per se, or that it is not a great public necessity. Accordingly, I think that if it was the object of the pleader to charge the railroad- company with the erection of a bridge in such a negligent and faulty manner as to be a nuisance, the petition should state by what fault of construction, which in the nature of things could have been avoided, the bridge became a nuisance. My own view is, that if in planning and constructing the said bridge, the railroad company brought to its execution the engineering knowledge and skill ordinarily practiced in such works, and such knowledge and skill were practically applied to the building of said bridge, if the property of any person was damaged, or became liable to damage, so that its value was depreciated by reason of the erection of such bridge, the case comes within the provision of the constitution referred to in the opinion of the chief justice; that such damage should