The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-02-26

| lenuHnl ROAD Is accompanied Win TINS I'M
piled qualification, that its road shall moi
be so operated or managed as TO unreas
onably interfere with or disturb the peace.
full or comfortable enjoyment OF others, in
the use OF their property. Grants OF priv.
ileges or powers to corporate bodies like
those claimed herein confer no license ia
use them In disregard OF the private
right OF others and with immunity from
their invasion. The great principle OF the
| common law which Is equally the teach.
ing OF Christian morality, so to use ones
property as not TO iniure another, forbids
any other application or use OF the rights
and powers conferred.
Undoubtedly railway over the public
| highways OF the city may be authorized by
! the state, aud when constructed strictly in
| pursuance OF the authority, and used with
reasonable care, it produces only that in
cidcntal Inconvenience which unayOida-
bly, follows the additional occupation OF
the street for the passage Of its cars, with
the noises and disturbances necessarily at
tending such use. No one can complain
that such use Is a nuisance for which n re-
coycry at law can be had. Tho private in
convenience in such q case must be suf-
lorcd for tho public accommodation.
II however It violates its charter or its
contract rights il is liable.
1t cannot run its cars and engines Mt u
greater rate oil speed over Sixth street than
six miles an hour.
IL cannot park or stand It's caIs for any
great length Of time on Sixth street.
II cannot use Sixth street for depot or
terminal facilities or for switching.
II has no authority 10 use Sixth street
exclusively for any purpose.
II has no authority TO lay more than two
tracks in Sixth street, even though it.might
facilitate the clearing of the street when
using II in strict accordance with their
charter and contract.
1t cannot impair plaintiffs right OF in
gross or cgrcss 10 or from his premises.
Nor will any incidental benefit arising from
the construction OF the road, such az in
crease in the value Of the property, be q
sot-oll 10 any damages plaintiff may have
suffered under any one OF the heads just
mentioned.
So that IL YOU are satisfied from the
proof that the street has been excessively
used by defendant In parking its cars,
operating iis road Tor the regular trains or
In switching in any way, or in running ut
higher rate Of speed than six miles an
hour ia front OF or near defendants prem
scs, aud h attended with much noise,
dust, SCOT cindcrs, smoke by such excess.
i've use. that the ingress and cgrcss to and
from his property has been hindcrcl or
ohslrucicd Ia his discomfort aud annoy
ancc and injury 10 his business by such
use. plaintiff would be- entitled 10 recover
such damages m the evidence satisfies you
are entitled TO.
II you find from the evidence that the
grade Of Sixth street had not been pre-
yiously fixed by the city aud that when
defendant began It's work In the construc.
ton OF It's road; the grade was given by
the City Engineer. acting for the city, aud
the defendant road was required to con-
form io that grade, then It is not liable for
any damage resulting from raising the
street 10 the grade.
II on the other hand the evidence sat
isles you that the grade of the street had
been previously fixed by the city, or tho
grade us given defendant was not given in
good faith rs the street grade, and such
grade only NJ would have been given II
the street grade had been asked Tor. but
WIS given Ia accommodate the use Oi the
street 10 railroad purposes, then whatever
damages resulted 10 plaintiff in raising tho
street 10 such grade, he would be entitled
To recover, us the cyi dcncc satisfies YOU he
hns sustained.
II the evidence satisfies YOU that tho
grading nnd paving OF Sixth street was
10 gllIF Increased the value of
DEsNnis's. this is q proper Offset
ID the I'm Of damages just charged.
u S5n find from the evidence that dur |
iBg the time the defendants we're con- |
that Is grading and paving |
Sixth street they M ohstructcd the street |
NJ to exclude all ordinary travel aud in
iurcd his business or impaired the rental
value OF his premises, you should allow
plaintiff therefor such damages ~ the
evidence satisfies YOU be- has sustained.
This however. would not boz the casc u
the obstruction Of the street WIS occnsioncd
hy the requirements of the city, In the
interest aud Tor tho benefit oi tho public
la its oilurl to improve the street.
II you hnd from The evidence that the
dirt which WIS deposited iu plaintiffs
ynrl and around his house, caused water
tu accumulate aud stand unlcr his house
aud produced sickness Ut himself. and that
these defendants put the dirt there, YOU
should allow him such damages rs the
proof satisfies You hc should have. for his
sickness aud damage 10 the house. II,
ON thc other hand, the dirt was put there
10y mon independent Ol defendant, such ~
contractors or suh-cunturlors. who hal
conirci 10 grade AMI pave thc roal-bcd,
then these defendants would not boz liable
Tor any damages arising thrWlrom. or u
YOU tnd that alter ih' dirt was deposited
thcrr log tlurl parties with consent of
plaintiff hc then refused To allow thcm To
finish filling mp the lot, hc can have no
recovery ior injuries resulting from thc
dirt being deposited on his lot
Tho corporate authorities ct any mcor.
pomicd town or city when applied 30 by
any owner of real estate within tho corpl.
rate limits who dpslus to build upon his
property shall apply a. the city and hnyr
thu grade established. II the corporation
fails ur ncglrcis to lis ~ establish the grade
AMI the applicant, Or any ono else along
said street. build upon their Dot and the
grade is uiirrNurl established ~ hich dam.
ages thv property then there can be- ~.
cover therefor NoIl YOU ate D ttisiiti from
the evidence that application WIS ma lc io
the Legislative Council or CITY Engineer Tor
hruidrul Sixth s,rrctaud wl.nrglietntIy
overlooked ur Itityl to hr given. then ANY
damaged suffered hy roison thereof thee,
defendants would hy liable for.
To- estimating damages done "a plaintiff
hN lmplIrWuut ul ingfcss NJ cgrrss io his
property you ar' 10 estimate only actual
damages done io bis property or business,
and You arc not lp cons. lcr probable or
speculative profits, or such as be might or
might not have made These arc too &C.
mutr Tor YOU 90 allow us damages You
a u