32 F. 727 | U.S. Cir. Ct. | 1887
This case is now submitted on exceptions by both parties to the report of the commissioners, and on certain motions and applications connected therewith. A brief review of the facts connected with this litigation will help to clearly understand the present questions. The plaintiff holds under special charter, granted by the territory of Nebraska, an exclusive franchise for the building and operating of a horse railway in the city of Omaha, for a period of 50 years from the first of
One motion of the defendant is to dismiss these proceedings with reference to the assessment of damages, oil the ground that this court has no jurisdiction of such matter. Both parties are citizens of Nebraska, and the jurisdiction of this court was invoked on the ground that the state of Nebraska had passed a,law impairing the obligation of its charter contract with the plaintiff'. That question having been decided against the plaintiff, defendant insists that the case necessarily went out of this court; that the matter of damages isa question purely under state laws, of which this court could not take jurisdiction. It further insists that the prayer for relief in plaintiff’s bill, being for an injunction, is not broad enough to include the assessment of damages. I think the defendant is wrong in both of these propositions. It is the settled law of the supreme court that, when a case is presented involving a federal question, the jurisdiction of the court attaches to the whole case, and is not limited to the mere decision of that single federal question. Tennessee v. Davis, 100 U. S. 257; Railroad Co. v. Mississippi, 102 U. S. 135. In this last case, Mr. Justice Harlax, speaking for the court, says that it is settled law in that tribunal—
“Tliat it is not sufficient to exclude the judicial power of the United States for a particular case, that it involves questions which do not all depend on the constitution or laws of the United States; but, wherein a. question to which the judicial power of the Union is extended by the constitution forms an ingredient in the original causes, it is within the power of congress to give the circuit courts jurisdiction of that case, although other questions of fact or of law may be involved in it.”
Counsel’s suggestion that any case might be brought in this court by the mere assertion of a right under the federal constitution, is easily answered. No mere assertion that a federal question exists, or that a right is claimed under the federal constitution, is of itself sufficient to give jurisdiction; it must appear that there is some real, substantial federal ques
On the other hand, plaintiff asks, practically, that the court change its decree heretofore rendered, and grant an absolute injunction; and this on the ground that the court has found that the plaintiff’s property would be damaged by the construction of defendant’s tramway; and that, under the clause in the Nebraska constitution heretofore referred to, it is entitled to compensation therefor. Plaintiff urges that no right of eminent domain has been granted to defendant, that the same section of the Nebraska constitution prohibits the taking and the damaging of private property for public use, without just compensation, and that as no private property can be taken for public use by any party to whom the right of eminent domain has not been given, so no private property can be damaged except under the same circumstances; and hence that, unless the parties voluntarily agree upon the amount of compensation, the construction of the tram-way should be absolutely enjoined. I think this is an error. In the first place, the Nebraska constitution does not require payment in advance for either the taking or damaging of private property for public use; in the second, place, defendant has obtained from the owner of the soil the right to occupy the streets, and none of the plaintiff’s property is taken. In the third place, the supreme court of Nebraska in two cases (Railroad Co. v. Reinhackle, 15 Neb. 279, 18 N. W. Rep. 69, and Railroad Co. v. Fellers, 16 Neb. 169, 20 N. W. Rep. 217,) have drawn the proper distinction between cases of taking and those of damaging property, and held that the statutory provisions apply simply to the case of taking, and that in the other case an action for damages will lie.
Defendant also moves the court to send the hearing back to the commissioners, or to a master, in order that it may offer additional testimony upon one point, and that is as to the number of passengers which daily get on or ofif plaintiff’s cars on those streets, or portions thereof, in which plaintiff’s tracks are paralleled, or proposed to be paralleled, by the defendant’s tram-way. It urges in support of this that it had but brief notice of the meeting of the commissioners, and that it had no knowledge of what matters the commissioners were going to consider in forming their estimate of the amount of the damages. To this it may be replied that it asked nb delay from the commissioners, it offered all the testimony which it then desired, and that this matter was plainly called to its attention in the opinion of the court directing the appointment of the commissioners. The conclusions to which I have come in reference to the report of the commissioners suggest also additional reasons for overruling this motion.
And now I come to the report of the commissioners, and, without naming in detail the various exceptions of the two parties, respectively,
Referring to the facts as heretofore stated, the plaintiff has 18 miles of railway. It also owns 62 cars, about 50 of which are in daily use; the daily carriage of passengers ranges from 15,000 to 18,000 persons; the average daily receipts in summer are about $800; those in June last, estimating the last three days as equal to the others, amounted to $24,-874.17; in winter the receipts are about 25 per cent, less; the operating expenses are from 50 to 60 per cent, of the earnings; the value of the track varies from $10,000 to $12,500 per mile. It will thus be perceived that the net earnings run from $200 to $400 a day. The franchise of the plaintiff includes all the streets, Avith perhaps a single exception; the permission to the defendant covers only a limited number of streets; the commissioners, besides hearing all the testimony that either party offered, made a personal examination of the various lines, completed and projected, of both parties; the defendant’s tramway crosses the plaintiff’s track in one or two places; the commissioners considered that these crossings Avorked no damage, and allowed nothing therefor. They arrived at their estimate of damages in this way: As heretofore stated, in t>vo places, and for a few blocks in each, the defendant’s tramway occupies the same street as the plaintiff’s track, being placed in that portion of the street betAveen the plaintiff’s track and the sidewalk. Bassengers going to the plaintiff’s cars must cross the defendant’s tramway, over Avhich will be passing, with more or less speed and frequency, defendant’s cable cars. This naturally would operate to prevent some from seeking plaintiff’s cars, when by the use of defendant’s cars they can be carried to the same, or nearly the same, place. This inconvenience of accessibility was considered a legitimate matter of damage and compensation. They state'their conclusions as to one place in this way:
“Wo find the average number of passengers traveling upon the cars of the plaintiff company on Tenth street, where its said road is paralleled by the defendant company, to be (1,266) twelve hundred and sixty-six per day; and the revenue per day derived from said number of passengers so traveling to be sixty-three and 30-100 ($63.30) dollars. From all the testimony offered and available by the commissioner, it is found that seventy-five (75) per cent, of the last above-stated amount would be carried by the cable company, defendant, and twenty-five (25) per cent, would be carried by the plaintiff company. Of that amount carried by the said cable company, defendant, we find seventy (70) per cent, of the amount carried by it to be so carried as the result of competition, which is not by the commission considered; and thirty (30) per cent, of the amount thus carried to be carried as the result of inaccessibility, and difficulty of reaching the plaintiff’s cars and tracks, — by reason of the location of defendant company’s tracks outside said plaintiff’s line, and of cars moving upon and up and down the same. Tour commissioners find that thirty (30) per cent, of seventy-five (75) per cent, of the sum of ($63.30) sixty-three and 30-100 dollars is the sum of fourteen and 25-100 ($14.25) dollars.”
They proceed in the same way as to the other place of mutual occupation of the street, and from the two conclude that the plaintiff’s damages amount to $23.65 per day, or $8,632.25 per year, which, for the
Now, these are all the material facts detailed, or which the commissioners had before them for consideration, other than the information obtained from personal examination. Upon these facts I remark:
1. That while it seems clear that the plaintiff is damaged in such a manner that it ought to receive compensation, and that the case is one that comes within the purview of the constitutional provision, it is equally clear that it is difficult to point out the specific matters which are proper for consideration; and, also, when those matters are determined, to ascertain with any decree of accuracy the amount of the damage. Any injury which flows from the mere matter of competition, or from the fact that the better facilities of the new road attract passengers from the old, must be excluded; for if thfe defendant has a right to construct its road, as has been decided, no one has a right to complain of the better facilities or the greater inducements to passengers it provides. The greater speed and comfort of railroad travel will speedily destroy the business of a prior stage line, but this give no right of action to the latter, and furnishes no basis of damages. It is simply one of the inconveniences which attend the matter of improvement, of which no individual can complain; and the commissioners in their report have endeavored to separate this matter of competition from that of inaccessibility.
2. I remark that the basis of compensation suggested by the defendant is obviously inaccurate. It suggests the difference between the value of plaintiff’s property before the completion of defendant’s line, and that after. But this would include all that damage which flows from competition; and, when the new is very much better than the old, competition will practically destroy the value of the old. As between the cable and the horse railway, I have seen in Kansas City the effect of this, for there the superior speed and comfort of the cable road has practically destroyed the horse railway system. And to hold that the value of this system thus destroyed should be charged against the cable roads, would .impose a burden too monstrous to be thought of. Consider for a moment the value of a property whose earnings are as vast as those of this property are shown to be, and think of charging that value as the burden of compensatory damages upon a cable 'railway system whose operation sweeps away the bulk of those earnings; large as are the damages awarded by the commissioners in this case, they would be but as a mere trifle compared with those which would be awarded upon this basis.
3. The difficulty of accurately estimating the damages rests not alone upon the present condition, but depends also upon the facts that the future is an element which must be taken into consideration. Who can .say as to any given passenger what motive prompts him to take the car of the one road or of the other? How much is he affected by a desire
4. I remark that the lack of certainty in the measurement of the damages is no reason for refusing compensation. The law is full of instances in which there is the same lack of certainty, and where it is simply left to the sound discretion of the jury to determine what, under the circumstances, is iair and reasonable compensation. Take the common case of an injury to a person — the loss of a limb. The value of such limb, the damage from such injury, cannot be ascertained by any mathematical process. Life or limb and money are not convertible terms. There is no principle in mathematics which links the one to the other; and yet suits are maintained every day, and damages awarded, for just such injuries. All that can be done in those eases is to place the circumstances —the facts of the injury — before the jury, and leave them to say what, in their sound discretion, is just and fair compensation. All that is necessary is that there bo a certainty of damage as the direct result of the act complained of, and that it does not belong to that class of damages known in the law as damnum absque injuria.
í>. I remark that, to my mind, there is in this caso a certainty of damages other than those flowing from competition, which are tfie direct and inevitable result of the building of defendant’s cable system, come within the purview of the constitutional provision, and for which the plaintiff is entitled to compensation. Formerly all compensation was limited to cases in which properly was taken. That was the scope of the constitutional provisions, but the often manifest, injustice of such limitation has led to constitutional action in many states extending compensation to cases in which property is damaged, although none is actually taken. Several cases have arisen in which has been discussed the question of what injuries to property give, under such a constitutional provision, the
I conclude, therefore, upon the rule above laid down, that the commissioners were right in the manner of ascertaining compensation. As to the amount, they have assumed that the carriage of the passengers, prevented by inaccessibility from traveling in plaintiff’s cars, costs nothing; the costs of carriage evidently being considered paid by the other passengers. This is not a fair way of estimation. Who can say that this diminution in the number of passengers will not he accompanied by a corresponding reduction in the number of cars, and in the expenses
The clerk will compute the present value from the date of entering this decree to the termination of plaintiff’s franchise, and the order will be that amount is awarded as damages to the plaintiff for all the injuries done, or to be done, by the construction of defendant’s cable road in all tho streets which it is now authorized to occupy. All exceptions, except as above indicated, and all motions and applications, will be overruled and denied. Costs will bo charged against the defendant.