Williams v. Meridian Light & Ry. Co.

Smith, C. Jl, delivered the opinion of the court. The case presented to us for decision is that made by the bill and the last amendment thereto, for all questions eliminated from the bill by the various 'amendments thereto are waived although such amendments were made in order to meet the rulings of the court in response to demurrers (31 Cyc. 465; Brasfield v. French, 59 Miss. 632), so that no question raised in the court below by any of appellee’s various demurrers, other than the last, will be here considered. Three of the remaining questions referred to in the brief of counsel for appellant are not raised by the allegations of either the original or amended bill, and therfore are not presented to us for decision. These are: First, that the city of Meridian is without [193] power to grant a street railway franchise; second, conceding that the city has this power, that the ordinance by which the franchise in question was granted is void; and, third, that the charter of incorporation of appellee, the Meridian Light & Railway Company is void. The only questions raised by the pleadings, as we understand the record, are: First, is the laying of the additional track in the street in question a. public nuisance, from which abutting property owners sustain such special damage as will entitle them to the abatement thereof? Second, does the laying of this second track impose an additional servitude-upon the street; or, in its last analysis does a street railway impose an additional servitude upon a street for which the abutting property owners are entitled to compensation? .Third, should both of .these questions be answered in the negative, in event actual damage results to the abutting property owners by reason of the laying of this second track, are they entitled to compensation therefor under section 17 of the Constitution? It seems to be settled by the great weight of authority that the first two of these questions must be answered in the negative, in so far as they are governed by common-law principles alone. The case of Slaughter v. Railway Co., 95 Miss. 251, 48 So. 6, 1040, 25 L. R. A. (N. S.) 1265, and 98 Miss. 420, 53 So. 952, is not in conflict with this view, for in that case the street involved was so narrow, that the use by a street railway company of even a single track therein practically excluded all others from using the street at all. A very good discussion of the relative rights of a street railway company and abutting property owners in the use of a narrow street will be found in the case of Birmingham Railway, etc., Co. v. Smyer, 181 Ala. 121, 61 So. 358, 47 L. R. A. (N. S.) 597. The third question, however, must be answered in the affirmative. Prior to 1890 our Constitutions contained no provision that “private property shall not be . . . [194] damaged for public use, except on due compensation being first made to the owner or owners thereof,” so that, under the rule “that the general good must prevail over partial individual inconvenience” (White v. Yazoo City, 27 Miss. 357), the owner of private property was without remedy for any damage inflicted upon it for the public good. This rule was reversed by section 17 of the Constitution of 1800, as was pointed out in King v. Railway Co., 88. Miss. 456, 42 So. 204, 6 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749; and the right of the individual to the enjoyment of his property is now superior to that of the public to damage it for the general good. Formerly the public might use or authorize the use of its property in any manner consistent with the general good, without liability for any consequential damages resulting* therefrom' to the property of individuals; but now, while it may continue to use its property in any manner consistent with the general good, it must compensate the owner of private property for any damage thereby inflicted upon it. A municipality still has the right to permit the use of its ■streets by a street railway, but only upon payment to abutting property owners of any damage thereby inflicted upon them. These views are supported by King v. Railway Co., 88 Miss. 456, 42 So. 204, 6 L. R. A. (N. S.) 1636, 117 Am. St. Rep. 749, and by the original opinion in Slaughter v. Railway Co., 95 Miss. 251, 48 So. 6, 1040, 25 L. R. A. (N. S.) 1265. It is true that the decision in this last case did not in the end turn upon the point here involved, but the carefully prepared and well thought out opinion of Mayes, J., dealing therewith, is unanswerable in its logic. Reversed and remanded. In Response, to Suggestion oe Ekror.. Counsel for appellees misunderstand what we intended to hold in our former opinion; this misunderstanding being properly caused by the incomplete statement, in the opinion, of the third question presented to us for determination. What we intended to hold was this: [195] Under section 17 of the Constitution a street railway ■company is without power to construct or to operate a ■street railway in the streets of a municipality until compensation has first been made to the abutting property •owners for any actual damage which will result to them therefrom, and an injunction will lie to prevent it from so ■doing. Overruled. Stevens, J., took no part in the decision of this suggestion, of error.