The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1888-02-16
THE RUST CASE.
Points in an Interesting Decision
in the Federal Court.


Elvirs Rust ct al. VS.. Abner Taylor
This was an action brought by plaintiffs
against Abner Taylor, state capitol con-
! tractor, for damages to six lots on the
north side of College avenue, lying imme-
diately east of the Capitol spare. The
property was occupied and used as a
homestead, and was claimed to be of the
value of $4,000.
The railroad used by Abner Taylor for
carrying building material to the state
capitol, was located along College avenue,
which ia 100 feet wide, being about the
center of the street, at the east side of the
Rust premises, but beginning a curve to
enter the capitol grounds, approached to
with twenty-one feet at the west side.
The cut began about the east side
of the premises and extended
100 feet west of the premises.
This cut was ten feet deep in front of the
Rust premises and was forty feet wide at
the top, and was enclosed for its full
length with fence five feet high.
There was a street Immediately east of
the premises sixty feet in width and
running north and south. There was an
alley twenty feet wide on the west side of
the premises running north and south,
and an alley of same width north and
running east and west.
The half square state property on the
west of this property, fronting 100 feet on
College avenue and occupying all the
space between the Rust premises and
Brazos street, was always open and as
free to travel as street. A wagon or a
buggy could be driven along College av-
enue between the railroad track and the
Rust premises, but it could not
be readily turned in this space.
The road was built about May l, 1883, and
was In constant use until about January
Is, 1888, when it was removed and the
street graded as directed by the municipal
authorities of the city of Austin.
The railroad was necessary in the build
lied by implication in the contract
between the state and Abner
Taylor. 1t was located and its
grade established by said municipal au-
thorities. 1t was properly constructed,
carefully operated, and removed as soon
as it was practicable to dispense with its
use.
The evidence showed that the property
is now of greater value than when the
road was placed in the street,
and that its surroundings have been re-
stored by the removal of the railroad.
The evidence also showed that the parties
occupying the premises had suffered some
inconvenience and annoyance from the
presence and operation of the road, but
there was no depreciation in the value of
the property. 1t was also shown that its
rental value was decreased considerably
during this time the road was in the
street, bat 1t was never rented nor offered
for rent.
The defendant claimed exemption from
liability for any consequential injuries
growing out of the location and operation
of the road, because it was necessary
appliance in the construction of the build
ing, and because it was located and oper-
ated under license of law and by authority
of the state and city; and because it had
been removed without delay as soon as its
use could be dispensed with, and the
street duly restored to safe condition
for travel; and because there had been no
depreciation in the value of the property
and because the plaintiffs were not en-
titled to recover damages for
inconvenience incident to the prose
cution of public work
The court, Judge Don A. Pardee, pre-
siding, charged the jury, in substance, that
| if the railroad was located and built upon
College avenue by authority of the state
and city by Abner Taylor, as contractor
for building the state capitol, and if such
road was properly constructed and To-
Gated at the place and on the grade desig-
mated by the city authorities, defendant
using no more of the street than was nee
essary, and if the railroad was kept on the
tteet no longer than was reasonably nee
essary to convey the material to the state
capitol, and if the property of plaintiffs
had not been in fact deprecated in its
value, then that plaintiffs could not re-
cover.
The court also charged that if these facts
did not exist, but, on the contrary, as al
legged by plaintiffs, then that plaintiffs
should recover actual damages IN de-
creased value of property and rents.