Yazoo & Mississippi Valley Railroad v. Lefoldt

39 So. 459, 87 Miss. 317

Opinion

Cali-iooNji J\,

delivered the opinion of the court.

In an action for damages to his real property, caused by raising the grade of the street in front of it, the plaintiff below, appellee here, showed in evidence that the defendant company did raise the street several feet; that this damaged his property to the amount of his recovery; that there was a grade of the street established and the street paved with rock by the city of Vicksburg, and that this was raised by defendant by the deposit of gravel, and that it was not necessary to raise the grade in order to keep it in repair with gravel. It appeared in the progress of the trial that (quoting from the record) “the defendant here offered to prove that under the ordinance of the city of Vicksburg granting the Louisville, New Orleans & Texas Railroad Company, of which the defendant company is the successor by virtue of consolidation, its right of way in said street, the railroad company was required to gravel this street and keep it graveled, and that it further required the railroad company to keep, the rails of its track flush on a level with the street; that from time to time the board of mayor and aldermen would notify the defendant company to put gravel upon this street, and from time to time in pursuance of this notice the defendant company for several years past has each year spread gravel over the street; that the effect of this has been to raise the street, and in order to keep the track level or flush with the street that they raised their tracks to correspond with this raised grade. This proof was objected to, the objection.was sustained, and the defendant excepted.”

Disregarding technical objections, it is not easy to find in this ordinance or the proceedings under it authority to raise the street or change the grade. But we think'the result should be the same if the ordinance purported to give such authority. The city must have the power before it can transfer it to appellant, and it did not have the power to so damage appellee without previous compensation. In reaching this conclusion we have examined, pro and con, the following: Theobald v. L., N. O. & T. R. R. Co., 66 Miss., 279 (6 South. Rep., 230; 4 L. R. A., 735; 14 Am. St. Rep., 564); Stowers v. Postal Tel. Co., 68 Miss., 559 (9 South. Rep., 356; 12 L. R. A., 864; 24 Am. St. Rep., 290); A. & V. R. R. Co. v. Bloom, 71 Miss., 247 (15 South. Rep., 72); Vicksburg v. Herman, 72 Miss., 211 (16 South. Rep., 434); O’Brien v. Philadelphia, 30 Am. St. Rep., 844, note; Conners v. Y. & M. V. R. R. Co. (Miss.), 38 South. Rep., 320; Gulf, etc., v. Bowers, 80 Miss., 570 (32 South. Rep., 113; 27 Am. & Eng. Ency. Law, 122); Fries v. N. Y., etc., R. R. Co. (N. Y.), 62 N. E., 358; Const. Miss., sec. 17; Charter City of Vicksburg, Acts 1884, ch. 391, arts. 15, 24, 26, sec. 28, pp. 439, 441, 442.

Affirmed.