The refusal of the court below to grant the defendant's request
to charge upon a question in relation to which the plaintiff had
introduced no evidence, and which was therefore an abstract
question not before the court, was not error.
When a state constitution provides that "private property shall
not be taken, appropriated or damaged for public use without just
compensation," a railroad company constructing its road in a public
street under a sufficient grant from the legislature or
municipality is nevertheless liable to abutting owners of land for
consequential injuries to their property resulting from such
construction.
The case is stated in the opinion.
MR. CHIEF JUSTICE LAMAR delivered the opinion of the Court.
This is an action at law brought in the Circuit Court of Garland
County, Arkansas, at its February term, 1883, by Curnel S.
Williamson and Fannie G. Williamson, his wife, against the Hot
Springs Railroad Company, a corporation organized under the laws of
that state, to recover damages
Page 136 U. S. 122
for alleged injuries done to certain described real estate
belonging to Mrs. Williamson in the City of Hot Springs, by the
defendant company.
The declaration alleged that the plaintiff Fannie G. Williamson
was the owner in fee of lots 1 and 2, in block No. 78, and lot 9,
in block No. 69, in that city; that lots 1 and 2 are separated from
lot 9 by Benton Street, which is 140 feet wide, and was laid out by
the general government and dedicated to the city, with the other
streets in the city, before the damages for which suit was brought
were committed; that lot 9 lies south of Benton Street, lot 1
directly across the street on the north, and lot 2 lies immediately
north of lot 1; that the defendant, a railroad company, organized
as aforesaid, with its termini at Hot Springs and at Malvern, in
Hot Springs County in that state, by and through its agents and
employees, on and prior to the 10th of December, 1881, constructed,
threw up, and completed in and along the center of Benton Street,
between lots 1 and 9, and running the full length of those lots, a
permanent embankment of earth and stone fifty feet wide and of
great height to serve as a roadbed for its railroad track under a
fraudulent and unauthorized contract secretly and clandestinely
entered into between it and the city for the purpose of defrauding
and injuring plaintiffs; that the defendant also constructed a
turning table at the southeast corner of that embankment and the
northeast corner of lot 9, and immediately thereafter proceeded to
lay and fix its railroad track permanently on the embankment, which
thereby became and thereafter was a part or extension of its
railroad; that by the embankment, extension, and turning table,
plaintiffs and others were cut off from and deprived of the use of
that street in connection with said lots, and their egress and
ingress therefrom and therein impaired and destroyed; that said
lots, which, by reason of their lateral frontage upon Benton
Street, were of great value, were thereby greatly damaged and
decreased in value to the extent of $5,000, and that, since the
dedication of Benton Street to the city, the defendant had
wrongfully appropriated almost the whole of it for its roadbed and
other
Page 136 U. S. 123
purposes, thereby wantonly injuring plaintiffs, and all other
owners of land adjoining that street. The prayer of the petition
was for a judgment against the defendant for $5,000 and for other
relief.
The defendant answered, pleading ignorance as to whether the
plaintiff Fannie G. Williamson was the owner of the lots described
in the petition, and averring that those lots were located upon
Malvern Avenue, one of the original streets of the City of Hot
Springs, which was laid off by the city and opened and continuously
used thereafter as a street, and was never vacated by the city.
Further answering, it alleged that its railroad was constructed in
and upon its right of way granted it by Congress under the Act of
March 3, 1877, entitled "An act in relation to the Hot Springs
reservation, in the State of Arkansas," and under the alleged
ordinance of the city, which it denied had been passed
clandestinely or through any fraud on its part, and also alleged
that the turning table complained of was constructed on its right
of way, and upon lots 10 and 11, in block 69, in the city, which
were defendants' own property. As a further answer, the defendant
alleged that Curnel S. Williamson was improperly joined as a
plaintiff in the action.
At the trial of the case before the court and a jury, the
following agreed statement of facts, together with a map also
agreed upon as correct, was filed:
"1st. The accompanying map shows the location of Malvern Avenue,
Benton Street, the plaintiffs' lots, and the right of way granted
by Congress to the defendant under the act referred to in
defendant's answer, and approved by the Hot Springs Commission and
the Secretary of the Interior."
"2d. The extension claimed by the defendant under the ordinance
of the City of Hot Springs consists of a strip fifty feet wide, the
center thereof on a direct line with the center of the right of way
granted by Congress, and extending westward to Malvern Avenue, a
distance of 130 feet."
"3d. The turntable is fifty feet in diameter. It is located as
marked on the map. Lots 10 and 11, in block 69, upon which a part
of the turntable is located, belong to the defendant. "
Page 136 U. S. 124
"4th. Gaines Avenue was located as a street of said City of Hot
Springs, and opened and accepted by the city in 1876, October or
September. It was 80 feet wide, and the northern boundary thereof
was about coterminous with the northern boundary of defendant's
right of way. The right of way is 100 feet wide, subject to
explanation."
The map referred to shows that Benton Street and the right of
way run almost east and west, the right of way extending south to
the south line of Benton Street. Immediately east of lot 9, and
also adjacent to the right of way, is lot 10, and immediately
beyond that is lot 11. The turntable is located partly on the right
of way and in part on the company's lots 10 and 11, and appears to
be about 40 feet east of the east line of lot 9, and nearly the
same distance east of the western extremity of the right of way
granted by Congress. Malvern Avenue runs nearly from the southeast
to the northwest, and is 130 feet west of the western terminus of
the right of way.
Considerable testimony was introduced on both sides on the
question of damages as presented by the pleadings, and upon that
question alone the evidence was conflicting. Evidence was also
introduced on the part of the defendant to show that the alleged
obstructions erected by it were such as are generally used at
terminal stations, and were necessary for the operations of the
road. One of its witnesses testified that
"without the turntable, the train could not be run on the right
of way within the City of Hot Springs without great danger to life
and property, for without [it], the engines could not be turned,
and would have to be run in back motion either in departing from
the depot or coming to it. This would be specially dangerous at
night, as the headlight could not be seen while the engine was in
back motion."
The embankment was described by the witnesses as being 50 feet
wide, and several feet higher than the grade of the street, and is
enclosed by a granite wall. It is 25 feet from lot 9 on the south,
and 65 feet from lot 1 on the north.
The ordinance of the city council granting a right of way 50
feet wide from the western terminus of the congressional right of
way to Malvern Avenue (130 feet) was also introduced,
Page 136 U. S. 125
and it was admitted that the company had filed its written
acceptance of the same within ten days from its passage, as
required by section 4 thereof. It also appeared in evidence that
the city had, by an ordinance approved February 26, 1883,
"authorized and empowered" the defendant
"to erect all necessary and suitable depot buildings and other
structures incident to the operation of its road within the limits
of its 'right of way,' granted it by Congress, . . . and to
maintain and continue the same, or any depot buildings or other
erections or improvements heretofore constructed or made by
it."
That ordinance further provided that that part of Benton Street,
for two squares east of Malvern Avenue,
"within the limits of the 'right of way' granted by Congress, .
. . and the extension thereto heretofore granted by the City of Hot
Springs, except so much thereof as shall be required to leave open
the crossing of Cottage Street [first street east of Malvern
Avenue] is hereby vacated and closed, and the extensive use and
control thereof is granted to the Hot Springs Railroad Company for
railroad and depot purposes."
After the testimony in the case had been closed, upon request of
the plaintiff, the name of C. S. Williamson was dropped from the
complaint, and his evidence was also excluded from the jury.
At the request of the plaintiff the court charged the jury as
follows:
"I. The court instructed the jury that the right to use streets
in a city by the adjoining lot owners is property, and a right of
way belonging to the owner of said lots, and that no such right can
be taken or injured or appropriated to the use of any corporation
until full compensation therefor shall be first made to the owner
in money, or secured to him by a deposit of money, which
compensation is irrespective of any benefit from any improvement
made by said corporation."
"II. The City of Hot Springs had no right to pass an ordinance
granting the defendant a right of way along Benton Street, and
defendant could acquire no right to build any permanent structure
or lay its track thereon by virtue of such ordinance. "
Page 136 U. S. 126
"III. The court instructs the jury that the measure of damages
to adjacent property caused by the use of a street as a site for a
railroad is the diminution of the value of the property, and the
recovery may include prospective a well as past damages, when the
obstructions to the use of the street are of a permanent
nature."
The court, upon its own motion, instructed the jury
"that if they believe from the evidence that the defendant, by
its agents or employees, constructed in Benton Street, between lot
9, in block 69, and lots 1 and 2, in block 78, in the City of Hot
Springs, a permanent embankment as a roadbed on which to lay and
extend its railroad track, and then, or before the commencement of
this suit, placed and fixed its track permanently upon said
embankment, as charged in the complaint, that said lots, or any of
them, were or are permanently injured or damaged thereby, and that
said lots were then, and still are, the property of the plaintiff,
Fannie G. Williamson, they must find in her favor, and in such case
the difference between the present value of the lot or lots so
damaged with the embankment, and the said track thereon existing,
and what such value would be if the embankment and said track were
removed or had never existed, is the measure of damages."
To all of which instructions the defendant at the time
excepted.
The defendant requested the court to give several instructions
to the jury, which the court declined to do except in one instance,
in a modified form. to which refusals the defendant at the time
excepted, but, as none of them are relied upon in the argument in
this Court except the second one, it is only necessary to set that
one out in full. It is as follows:
"The right of way was granted by Congress to the defendant from
a point on the eastern boundary of the Hot Springs reservation to
the old Malvern stage road within said reservation. The grant
carried with it the right to erect and maintain all suitable
structures usual and necessary to the operation of a railroad,
including a depot, stationhouse, and such tracks and other
improvements of that nature as are necessary to the proper and
convenient dispatch of its business, and if you find that the
turntable and other improvements
Page 136 U. S. 127
complained of, or any part of them, are within the right of way
granted by Congress to the defendant as aforesaid, and are
necessary to the operation of its road and such as are usual at
terminal stations, you cannot find for the plaintiffs by reason of
any damage caused to their lots by such improvements."
The jury returned a verdict in favor of the plaintiff for the
sum of $2,275, upon which judgment was rendered, and after a motion
for a new trial, and also a motion in arrest of judgment, had both
been overruled, an appeal was taken to the supreme court of the
state, which affirmed the judgment of the trial court. 45 Ark. 429.
This writ of error was then sued out.
The following is the only assignment of error:
"The court erred in ruling that the plaintiff in error did nor
have the lawful right to construct its works, including the
turntable, on the right of way granted it by the act of Congress of
March 3, 1877, and in holding that it was liable to the defendant
in error by reason of the alleged obstruction caused by said
works."
From the foregoing statement it is observed that the claim for
damages in the trial court was based upon two propositions: first
that the plaintiff's property was injured by reason of the
embankment in Benton Street alongside it, west of the terminus of
the congressional right of way, and second that it was also injured
by reason of the construction and existence of the turntable partly
upon the congressional right of way, no claim for damages ever
having been made by reason of the construction of a roadbed and
track upon the congressional grant.
It is also observed that while the defendant saved exceptions to
the various rulings of the court on the question of damages arising
from the construction of the embankment on that part of Benton
Street separating the plaintiffs' lots, and also as to the rule for
the computation of such damages, none of those exceptions is
embodied in the assignment of error, nor is any point made in
relation to them in the brief of counsel for the company. In his
own language,
"The only
Page 136 U. S. 128
question before this Court is that which arises under the act of
Congress, . . . and relates alone to the turntable and works
constructed on that part of the right of way embraced in the grant
by Congress. This excludes from consideration the embankment built
upon the western extension of the track under the city ordinance,
and involves the proper construction of the act of Congress."
The question before us is therefore narrowed down to the ruling
of the trial court upon the only issue which the assignment of
error presents. Upon an examination of the record, it will be found
that no evidence was introduced by the plaintiff as to whether the
turntable and other works constructed on the right of way injured
and damaged her property at all, and the only evidence on that
subject was introduced by the defendant, which evidence tended to
show that by the erection of a depot and other works on the right
of way, property in that vicinity had not only not been
depreciated, but had, in reality, risen in value.
It is further observed that in its charged to the jury, the
court made no reference whatever to the question of damages arising
out of the construction and operation of the turntable and other
works on the congressional right of way, except that it refused to
charge that the defendant had the right to construct and maintain
whatever structures thereon it might deem essential to its
business, as above set forth in detail, or that, having that right,
it was not liable to the owners of abutting real estate for damages
caused by the exercise of that right in a proper and skillful
manner. Inasmuch, therefore, as the plaintiff introduced no
evidence to sustain that branch of her claim for damages, the court
was constrained to conclude that it was eliminated from the case.
She certainly could not obtain a verdict for any damages arising
out of that branch of the claim without introducing any evidence to
support it. The evidence which the defendant introduced bearing on
that question, if taken into consideration by the jury at all,
could not have had any but a favorable effect as to the defendant;
but, as already remarked, it was rendered unnecessary by the
plaintiff's virtual abandonment of that part
Page 136 U. S. 129
of her claim for damages. There is nothing in the record to show
that that evidence was considered by the jury in arriving at their
verdict, because no charge relative thereto was given by the court,
or could legally have been given by it, on that question. The
refusal of the court to charge upon an abstract question in
relation to which the plaintiff had introduced no evidence, and
which was not therefore before it, was not error.
While we hold this view upon the sole question involved in the
assignment of error, it is proper to add that we concur in the view
taken of this case by the Supreme Court of Arkansas. That court
held that the act of Congress granting the right of way to the
defendant company over the strip of land upon which its road was to
be operated (which in this case was along the line of Benton
Street, an original street in the Town of Hot Springs, and used as
such at the time of the passage of the act) carried with it the
right to construct, maintain, and operate its line of railroad
therein, and to appropriate such right as a location for its
turntable and depots, and for any other purpose necessary to the
operation of its road; but that it was equally clear, under the
provisions of the present Constitution of the State of Arkansas,
that if, in the exercise of that right, the property of an
adjoining owner was damaged in the use and enjoyment of the street
upon which the road was located, such owner would be entitled to
recover such damages from the company. It further held that the
contention of the plaintiff in error that the act of Congress
invested it with an absolute title to the street along which its
road was located, and exempted it from any liability for
consequential damages resulting to an abutting owner from the
laying of its track in a proper and skillful manner, was founded
upon cases arising under the familiar constitutional restriction
that private property shall not be taken for public use without
compensation, which decisions generally turned upon the question
what is a
taking within the meaning of such provision;
that the constitution of that state of 1878, which provides that
"private property shall not be taken, appropriated, or damaged for
public use without just compensation," has changed that rule;
Page 136 U. S. 130
that all the decisions rendered under similar constitutional
provisions concur in holding that the use of a street by a railroad
company as a site for its track, under legislative or municipal
authority, when it interferes with the rights of adjoining lot
owners to the use of the street, as a means of ingress and egress,
subjects the railroad company to an action for damages on account
of the diminution of the value of the property caused by such use,
and lastly, that even conceding the authority of the Town of Hot
Springs to pass the ordinance authorizing the company to construct
and maintain the railroad embankment, track, and turntable
complained of, it cannot impair the constitutional right of the
defendant in error to compensation. We think those views are sound,
and in accordance with the decisions of this Court in
Pennsylvania Railroad Company v. Miller, 132 U. S.
75, and
New York Elevated Railroad v. Fifth Nat.
Bank, decided May 5, 1890,
135 U. S. 432.
The judgment of the court below is
Affirmed.