The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-03-14
DECISIONS HANDED
DOWN BY THE SUPREME
COURT.
OPINIONS FOR LEGAL MINDS TO
STUDY OVER.
Justice Gaines Delivers an Opinion in
the Case of the San Antonio Rapid
Transit Railway That Will be
Interesting to Railroad Men


San Antonio Rapid Transit Street
Railway Company VS.. Limburger.
Suit to recover damages alleged to have
been occasioned the defendant in error
by the construction of the street railway
along a street in front of his property;
from Bexar county, Fourth district.
Plaintiff below, Henry Lmburger, al
legged that in 1891 he owned, and that he
still owns, block of property in the city
of San Antonio fronting on Austin street.
That said property at said date was
worth $4,000. That said Austin street
is only 40 feet wide, and that double
tracked street railway was already OPP
Grating in front Of his premises. That on
said date defendant corporation, in vio-
latiOn of his rights and against his
wishes, built n third line of electric
street railway in front of his premises.
That the construction of said last men
toned line of railway completely OBJ
structed said street and plaintiff from
having proper use and enjoyment of his
premises. That said railway track at
said point was kept in bad and dangerous
condition, making it difficult and danger
GUS for vehicles of any kind to cross it.
That said premises of plaintiff have been
for years splendid location for retail
business. That by reason of the pres
ent condition of Austin street large
portion of the travel and traffic of that
part of said street in front of said prem
ises has been driven away, and that the
! rental and market value of plaintiff said
property has greatly deprecated to his
damage $4,000.
A general demurrer to this petition was
sustained by the trial court. Pulaintiff
refused to amend. The court of civil ap-
peals held that the petition stated good
cause of action, and it reversed and re-
manded the case.
O The operation of horse railway
upon u public street is not an additional
servitudc, and the owner of property
abutting upon the street cannot recover
damages for such use when the railway
is properly constructed and operated.
| (Gt Tex. S0)
The ruling in the case cited above was
in accord with all the decisions up to that
time, with one or two exceptions, and,
though there seems latterly to be some
disposition to question the correctness of
the doctrine, it is still supported by the
great weight of authority. Since the de-
clsion of that case much capital has been
| invested in street railways in this state
the value of which might be seriously i'm
paired by contrary ruling at this time.
However much therefore we might be in
clined to rule differently, were it an open
uestion, we should not now feel at liberty
to overrule that decision unless convinced
that it was palplbly wrong. Booth on
st. Ry'S. sec. So
(2) So far we have been speaking of
street railways upon which the cars are
drawn by horses, and so far, as we have
said, the authorities are in substantial
accord. 1lehe, however, we have the case
! of street railway upon which the cars
are propelled by electricity. We have
here also the additional circumstance that
two tracks of street railway had already
been constructed upon the street in from
of plaintiffs property, and that the track
in question was laid upon that part of the
street next to plaintiffs lot and left only
n space of 6 feet between the track and
the sidewalk.
The first question here then is: Are
street railways, upon which the cars are
moved by electricity, distinguishable from
those upon which horse power is used?
Upon this question there is some conflict
of authority, but it is held by the great
majority of the courts in which the ues-
(23 At. Rep 1853; 16 r. S. 66S; 4S Oh. st.
800; 20 At Repr $50: Al Fed. Rep. $50:
see contra. 33 Pas Rep. 900.
We are of the opinion that street rail,
ways which are operated by mechanical
power do not impose an additional servi-
tude upon the street and therefore do not
damage the owner of the abutting property
whether he owns the fee in the street
or not. Why an electric road should be a
burden and horse railroad should not,
we are unable to see. The electric car,
as was pointed out in one of the cases
cited above, docs not occupy as much
space upon the street as does the car with
the horses attached" We may assume
that they are capable of being run at
much greater rate of speed than horse
car; and the greater capacity of motion
may render them more dangerous. But
this increased rate of speed is not neces-
sarily inherent in the system, and so far
| as we can see they may be operated as
slowoly and as safely rs other cars. The
right to operate the railway gives no right
| to propel them at a dangerous rate of
| speed; and the road would be responsible
| for such improper operation.
81 We come then to the obstruction
of the access to plaintiffs store houses.
Does the defendant company occupy a
different position with reference to the
| rights of the plaintiff by reason of the
| fact, that its line in connection with the
| two which were previously contributed
practically occupies the entire space cover
ed by the street, and that its track is in
close proximity to the edge of the side
walk in front of plaintiffs lots? We
think not For where there is simple
track in broad street, the owner of the
adjacent property is not entitled to any
compensation from the railroad company;
and we think it follows that he is not en-
titled to be compensated when there is
more than one track. The principle is,
that the original purpose for which the
street was dedicated embraces the operas
ton OF a street railway, and if the owner
of adjacent property suffers q loss by rea-
son thereof it is damnum absQue injuria.
| (23 Att. Rep. SS4)
| az The facts alleged in the eighth
| paragraph of the petition if supplemented
| by n proper ayerment of damages. would
| have shown a cause of action. The rails
| of the track should be laid and maintain
ed on level with the grade of the street,
so as not to constitute a substantial in
reference with the passage Of vehicles.
But the measure of damages, where the
track is not laid and maintained. is not the
deprication in the value of the AUDITING
property. $50 Texas 56).
The injury is merely temporary in its
nature.
We are of the opinion that the judgment