Wight v. Daniels , 1920 Tex. App. LEXIS 1159 ( 1920 )

A switch track was built on the right of way of the railway company, and engines and cars were operated over it. The appellee's property adjoined the right of way. The trial court made the following finding:

"I find that the defendant has operated engines and cars over said track, and that considerable noises and smoke have been made by reason of the operation of said trains and engines over the said track."

The court then further finds as follows:

"I find that the construction of the said track and embankment at that place damaged the property of the plaintiff in the sum of $1,375 in that the construction of the track and embankment reduced the market value of the plaintiff's property in the sum of $1,375."

And the court made the following conclusion of law:

"I conclude as a matter of law that the defendant is liable to the plaintiff for the damage to his property by constructing the track and the embankment on the right of way of the Texas Pacific Railway Company near to the property of the plaintiff, and that the damages he suffered amounted to $1,375."

The appellant insists that the findings and the conclusion of the court clearly and specifically show that compensation was allowed only for damages accruing from the "construction of said track and embankment."

The court finds that "considerable noises and smoke have been made by reason of the operation of said trains," but, as insisted, does not include and allow compensation therefor as damages. The compensation was, we think, allowed only for damages accruing from the construction of the switch track, and the pertinent question for decision under the precise facts is: Does the mere bodily presence of a switch track near the property of another give rise to the liability here asserted, which is depreciation in the market value of the property? We think that the mere bodily presence of the switch track in this case does not of itself, unaccompanied, as here, by some special damage, render the appellant liable for compensation to the adjoining owner. Ry. Co. v. Shaw, 99 Tex. 559, 92 S.W. 30, 6 L.R.A. (N. S.) 245, 122 Am. St. Rep. 663; Richards v. Washington Terminal Co., 233 U.S. 546, 34 S. Ct. 654, 58 L. Ed. 1088, L.R.A. 1915A, 887; I. C.J. p. 965. It is because a physical damage or injury is not shown to the abutting property in suit. The damage to abutting property allowable in the various reported cases is based on operation and construction of the works, or construction of the works causing some special injury physically to the adjoining property. Consequently, we think, the cases have no application to the peculiar facts in this case. The writer thinks the case of Wight, Receiver, v. J. E. Belcher (just decided by this court) 226 S.W. 472, is different from this case on the facts. There the switch track and embankment caused the adjoining land to be flooded with water.

The judgment is reversed, and the cause is remanded.

Chief Justice WILLSON does not agree to the conclusion of the majority of the court and dissents therefrom.