Hopkins v. Western Pacific Railroad Co.

The appellant had no right, under the statutes of California, to construct and operate its road along the street in front of respondent's residence. The statute of 1861, in relation to railroad corporations using streets and highways, was modified by the statutes of 1862. (Session Laws, page 498, Sec. 3.)

The statutes of the United States, in vol. 13, page 504, refer to and mention privileges and benefits conferred by acts of Congress; no mention is made of a transfer of rights, if any, granted by the State of California.

But there is a condition in the act of 1863-4, page 471, viz.: That the road of the company, constructed along streets or highways, is to be so constructed as not to obstruct the passage of the same. This condition the company did not comply with.

The company did not comply with the conditions of the act of 1861; it did construct itsroad along said street, in such a manner as unnecessarily impaired its usefulness. A railway company appropriating land in violation of the provisions of the statute to be complied with on their part, their acts are, ordinarily, to be regarded as trespasses. (1 Redfield on Railways, 336, 337, 338, Sec. 81, Div. 2; Turner v. Shef. & Rotherham Railway, 10 M. & W. 425; Watkins v. Great Northern Railway Company, 6 Eng. L. and Eq. 179; Dean v. Sullivan Railroad Company, 2 Foster, 316; Mayor of Lichfield v. Simpson, 8 Ad. & Ellis, 65.)

The respondent purchased the land and improvements for a certain purpose, viz., for a family residence.

The company had no right to injure or destroy the land and improvements for a family residence, and as a defense claim that its market value might be equally great for some other purpose. (First Baptist Church in Schenectady v. Sch. & Troy R. R. Co., 5 Barb. 87, 88; 1 Redf. Railway, 262, Secs. 71-2; Railway v. Gilson, 8 Watts, 243; Columbus P. & I. Railway v. Simpson, 4 Law Reg. 696; S. C., 5 Ohio St. 251; Ind. Central Railway v. Hunter , 8 Ind. 74.)

JUDGES: McKinstry, J.

OPINION

McKINSTRY, Judge

We do not decide that the plaintiff is or is not the owner of the fee to the centre of the street in front of his premises. The complaint alleges that he is such owner, and is drawn with a double purpose: to recover damages for the trespass upon that portion of his lot lying within the limits of the street, and, as to the other portion, to recover special damages, caused by an obstruction of the highway. In the last aspect of the case, proof of the fact that the land would sell for less on account of the continuance of the nuisance, was not admissible. Under section 249 of the Practice Act, the nuisance could have been abated by the judgment in this action. If so abated (assuming the rule to be as claimed by respondent), and if the lot had been rendered temporarily valueless by reason of the obstruction, the plaintiff would be restored to the full enjoyment of his property, and be paid for it besides.

Regarding this as an action on the case for special or particular damages, the defendant was liable only for the damages actually sustained prior to the commencement of the suit. Every injury caused by the continuance of such a nuisance, affords a new and distinct cause of action. (Vedder v. Vedder , 1 Denio, 257; Delaware and Raritan Canal Company v. Wright, 1 Zabriskie, 469.) If a party, against whom a verdict in an action of this kind was recovered, did not abate the nuisance, increased exemplary damages could be recovered in each succeeding action. (2 Wheaton's Selw., N. P. 1141.) But on the trial of the first action, evidence tendered for the purpose of showing a diminution of the salable value of the premises, was inadmissible. (Bathishill v. Reed, 37 Eng. L. and E. 317.) Otherwise, a jury would be justified in finding damages equal to all the injury the premises would ever sustain, supposing the nuisance were to continue forever, which would be clearly wrong. (Thayer v. Brooks, 1 O. R. 489.)

If, in any aspect of the case, the decreased value of the plaintiff's premises can be considered, it is plain that it is the market value, or the sum for which they can be sold, as compared with their value before the creation of the nuisance, which is to be estimated; not their value for a particular purpose. Yet witnesses were permitted--notwithstanding the objection of the defendant--to testify to the decreased value of the property " as a family residence." This was error. It may be that the proximity of the railroad has rendered the property more valuable, although it has ceased to be desirable as a homestead. Indeed, it affirmatively appears from the transcript, that while witnesses gave opinions that the premises would be worth $ 10,000 if the embankment, on which the rails of defendant rest, had not been made, the plaintiff himself estimated them to be worth that sum on the day of the trial.

The court below also erred in admitting evidence of the purpose for which the portion of the street beneath the shadow of the defendant's culvert was used. The employees of defendant were not moving within the scope of their employment in the acts complained of, but on their own account; and it does not appear that the additional easement was enjoyed exclusively by the defendant. The doctrine respondeat superior does not apply.

Judgment and order denying new trial reversed and cause remanded.