136 P. 387 | Mont. | 1913
delivered the opinion of the court.
Action for damages alleged to have been caused to the lands of plaintiff by the wrongful aet of the defendant. The plaintiff had verdict and judgment. The defendant has appealed from the judgment and an order denying its motion for a new trial.
The plaintiff is the owner of lands lying on both sides of the Missouri river, a short distance below the point where the defendant’s line of railway crosses it, near Townsend, in Broad-water county. The general course taken by the river in this locality is from the southwest to the northeast. The course of the railway is from the southeast toward the northwest, crossing the river nearly at right angles. For the distance of more than a mile from the river to the southeast, the lands on either side
At the trial counsel for the defendant assumed the position that when the defendant, engaged as it is in the performance of a public duty, was confronted with the emergency created by the gorge rendering its roadbed and track unsafe, and the necessity was thus created for it to act in order to remedy the dangerous condition and safeguard its passengers and freight, it had the right to adopt any means suitable to that end, and hence that the plaintiff could not recover for any damage suf-. fered by him by reason of the course pursued by the defendant. This position is shown by special requests for instructions tendered by the defendant, the theory of all of which is exemplified by the following: “The defendant railway company, as a common carrier of persons and freight, was in duty bound to exercise the highest degree of care to protect its line of railroad from being injured or destroyed and to take all necessary pre
The requested instructions assume that, inasmuch as a railway is for the benefit of the public, in the authority given by the legislature to construct it, there is an implied subordination of the rights of the adjoining proprietors. This is true in so far as a railway company is given the privilege, by condemnation proceedings, to take or damage property necessary for the construction and operation of its road; but this power cannot be exercised except within the limitations and upon a fulfillment of the condition precedent attached: That no person can be deprived of his property without due process of law, and that just compensation must first be made to the owner. (Const., Art. III, secs. 14, 27.) The subordination of the rights of the private proprietors goes no further. Once the title has been acquired by the railway company, whether by purchase or condemnation, its use of it, as we have already said, must be governed by the same rules as that of private proprietors. Otherwise the guaranties of the Constitution would be of no avail. In Staton v. Norfolk & C. R. Co., supra, it was well said: “It would be of small comfort to the ruined proprietor to be told that he must bear his loss for the benefit of the public, and it would not be unnatural if he answered that if the public good required the destruction of his property an enlightened sense of public justice should demand that he be compensated for his
Counsel insist, however, that the water forced out of the main
Under the facts presented in this case, the water which left
The judgment and order are affirmed.
Affirmed.