Jarrett Lumber Corp. v. Christopher

Whitfield, J. This action was brought by the defendants in error to recover damages for a trespass committed by the corporation in constructing without permission a steam railroad track on a street abutting plaintiff’s lands, the soil of the street on which the railroad was built being [380] the property of the plaintiffs subject to the street easement. There was a plea of not guilty and verdict and judgment for the plaintiffs. The defendant took writ of error, and contends here that the trial court erred in not limiting the recovery to the damages which accrued before this action was brought, and that the recovery is excessive. The construction of a steam railroad track and the running of steam railroad trains thereon is an added burden upon a street not contemplated by a mere dedication of land for ordinary street purposes; and for such added burden the owner of the soil has appropriate remedies. See Seaboard Air Line Ry. v. Southern Inv. Co., 53 Fla. 832, 44 South. Rep. 351; Jacksonville, T. & K. W. Ry. Co. v. Lockwood, 33 Fla. 573, 15 South. Rep. 327. In an action of trespass qua-re clausum fregit against a railroad company for constructing and operating a railroad over plaintiff’s land covered by the street, the entire damage done to plaintiff’s abutting property by the construction and proper operation of the railroad may be recovered in an action, and the recovery should not be limited to damage sustained anterior to the commencement of the action; and it is not error to admit testimony as to the market value of the property before and after the construction of the road. Jacksonville, T. & K. W. Ry. Co. v. Lockwood, 33 Fla. 573, 15 South. Rep. 327. In this case the only plea is the general issue of not guilty, and there is nothing in the record to indicate that the railroad constructed on the plaintiffs’ soil which is called a log road used for mill purposes is not a permanent structure, so as to take it out' of the above rule. There is substantial evidence to sustain the amount of the verdict, and it does not appear that the jury were [381] not governed by the evidence. No material errors are shown, and the judgment is affirmed. Shackleford, C. J., and Taylor, Cockrell and Hocket, J. J., concur.