91 Neb. 150 | Neb. | 1912
On tlie former bearing of this case a judgment for tbe plaintiff was reversed, and tbe cause was remanded to tbe district court, with directions to make the railroad companies defendants, in order to enable tbe court to determine tbe question of tbe liability, as between them and tbe city of Lincoln, for damages to tbe plaintiff’s property abutting upon what is known as tbe “Tenth street viaduct,” caused by tbe erection of that structure. Phœnix Mutual Life Ins. Co. v. City of Lincoln, 87 Neb. 626. When the mandate was returned to tbe district court tbe plaintiff filed its amended petition; summons was issued thereon and seiwed upon tbe railroad companies. They appeared and demurred separately upon tbe ground that tbe facts stated therein were not sufficient to constitute a cause of action as against them. Tbe demurrers were overruled, and, answering over, they alleged tbe facts which they now contend constitute a complete defense to any liability on tlieir part. There being no dispute as to tbe facts, and tbe amount' of plaintiff’s damages having been settled for tbe purpose only of tbe trial by stipulation, a joint judgment was rendered against them and tlie city of Lincoln, (Tom which all of tbe defendants appealed.
Tbe record discloses that tlie railroad tracks of the
It is contended by the railroad companies that there was a misjoinder of causes of action, for which they insist the judgment of the district court must be reversed. It is argued that the action, so far as the city was concerned, was founded on the provisions of its charter.
Section 10578, Ann. St. 1909, provides, among other things, that every railroad corporation shall maintain and keep in good repair all bridges, with their abutments, which such corporation shall construct for the purpose of enabling their road to pass over or under any turnpike or public road. It is admitted that by its charter provisions the city had the power to require the railroad companies to construct the viaduct in question, and had lawfully exercised that power. It therefore follows that, when constructing the viaduct in compliance with the orders of the city, the companies were acting under lawful authority, and their act cannot be said to have been wrongfully or tortiously done. We have then a lawful act properly done which gave the plaintiff a right of action, which if originally brought against the railroad companies and the -city together would not have been a misjoinder of causes of action.
It is next contended by the railroad companies that this case was originally commenced against the city by plaintiff’s appeal from the award of damages, to which they could not thereafter lawfully be made parties, for that would amount to the bringing of another or different ac
It may be further ‘said that, when the railroad corn-pan ies were served with a summons duly issued upon the' plaintiff’s amended petition, they appeared generally, and thus conferred jurisdiction upon the court for all purposes; and it must be observed that, if they are liable to the plaintiff at all for the damages occasioned ly. the construction of the viaduct, it can make no difference to them whether that liability is determined in this action, or in a separate suit brought for that purpose.
This brings us to the main question presented for our determination, which is, whether the plaintiff is entitled to recover against both the city and the railroad companies, and, if not against both, which of them is liable for the, damages to plaintiff’s property caused by the construction of the viaduct? From what has already been said thei’e can be no doubt of plaintiff’s right of recovery. It is contended, however, that no judgment can be rendered against the city, because it acted in its governmental capacity only, and, if this be so, the contention is well founded. It clearly appears that the city of Lincoln in ordering the railway companies to construct the viaduct in question acted pursuant to the governmental power conferred upon it by its charter provisions for the protection * of life and property. The exercise of such power does not of itself subject the municipality to a private action for damages. 2 Elliott, Roads and Streets (3d ed.) sec. 890 (702); Wagner v. Portland, 40 Or. 389; Burkam v. Ohio & M. R. Co., 122 Ind. 344; Allentown v. Kramer, 73 Pa. St. 406; Murphy v. Chicago, R. I. & P R. Co., 247 Ill. 614; 3 Dillon, Municipal Corporations (5th ed.) sec. 1159.
It is claimed by the railroad companies that by caus
But one question remains for consideration, which may. be stated as follows: Upon the undisjmted facts of this case, are the railroad companies liable to abutting property owners for the damages caused by the construction of the viaduct? Railroads are given the right to lay their tracks in and across the streets of the municipalities of • this state by statute, and this right carries with it a corresponding duty on their part to construct and maintain at all times proper and safe crossings on the streets intersected. Omaha & R. V. R. Co. v. Brady, 39 Neb. 27. It would therefore seem that, when such companies in the performance of that duty are required to construct and maintain viaducts, they are liable for the cost of such construction, and all of the necessary incidents thereto. The facts of the case of Burritt v. City of New Haven, supra, are like those in the case at bar. That is a leading and well-considered case. It was there said: “The privilege of crossing the streets of the city is a part of the franchise of the company, and the necessary approaches constructed for the purpose of restoring city streets to their former usefulness under and as a condition of the exercise of the privilege are a part of the railroad structure authorized by its charter, and in their erection a party incidentally injured has as perfect a remedy against the company for consequential damages, as for a direct injury by it in the original construction of its railroad. The obligation to make compensation is as strong in one case as in the other, and to the discharge of that obligation in the manner prescribed it impliedly hound itself by its acceptance of its charter. Parker v. Boston & M. R. Co., 3 Cush. (Mass.) 107, 116; Bradley v. New York & N. H. R. Co., 23 Conn. 294, 310.
“It is insisted that this case is essentially different from the one last cited, because here the bridge is found to have been required by public convenience and necessity only, while there it was for the sole benefit and accom
The ordinance under which the railroad companies were granted the right to cross Tenth street provided that, by the acceptance and exercise of the rights so conferred, the companies would save and keep the city harmless from the payment of any and all damages growing out of the exercise of those rights. By exercising the right granted by this ordinance, the railroad companies assumed the obligations thereby imposed; and it necessarily follows that they are liable for the payment of all damages occasioned, not only by the original occupation, but also the necessary expense of making all needful and proper changes in the situation in order to insure to the public a safe and suitable means of travel upon that street; and it can make no difference whether they performed that obligation voluntarily or under legal compulsion.
From the foregoing we are of opinion that both upon principle and precedent the railroad companies are liable to the plaintiff for the damages occasioned by the con
REVERSED.