Barnes v. Michigan Air Line Railway

Campbell, C. J.

Plaintiffs own and occupy a paper-mill in Rochester, Oakland county, run by water-power derived' from Clinton river and Paint creek. This suit is brought for damages alleged to have been caused by the construction and) 'maintenance of railroad tracks and bridges across the premises of plaintiffs, damaging the water-power, and otherwise injuring them. Upon the trial the case was submitted by the court to the jury upon such damages as were caused by certain braces or cross-pieces, whereby the bridge piles across the water-way were held together in place.

Many questions were ruled on and brought up for review, which, as we regard the case, need not be discussed, although, upon a different state of pleadings and controversy, they would be important and require notice.

The declaration is in case for an entry about the close of November, 1878, under color of a legal statutory condemnation, and the construction of track, bridges, and other things somewhat specifically described. The only obstruction set forth concerning obstruction of the races is the driving of piles and the deposit of stones. All of these things are set-out .as the pursuance of a single scheme, whereby the alleged nuisance was created in pursuance of an authority claimed to be legal, but which was not legal.

The defense is that, while the defendant company proceeded in the first instance to build and carry out its improvements under color of proceedings which were reversed, yet a subsequent condemnation was had, which was confirmed, and plaintiffs were awarded compensation' which is final, and cannot be swelled by further litigation.

These latter proceedings were subsequent to anything which can be properly regarded as charged in the declaration; and in our opinion they covered everything which was submitted to the jury. The declaration does not set up, and we think the facts do not show, any change of plan in the bridges, or anything which was not the natural and legitimate completion of the structure, which was so far progressed -in when the second proceedings were had that the entire nature and probabilities of the damage were fairly before the ;jury. There is no practical difference of opinion concerning the fact that a pile bridge is unsafe and incomplete without, stays, and there is nothing in the declaration counting upon any such addition as a cause of damage.. The» view taken by the pleader in drawing the declaration was in precise accord with the weight of the testimony, and cannot be supposed to have been careless or improper. The case was evidently commenced with an idea that some question could be raised concerning continuing damages as not precluded by the award.

But it is the settled law of this State that, when proceedings are had to condemn lands for railways, the jury should consider, and the land-owners should lay before them, all the consequences of the appropriation of the land in the manner in which the company will use it. This was laid down in Harlow v. Marquette, H. & O. R. R. Co., 41 Mich. 336, in doctrine which was followed in Dunlap v. Toledo, A. A. & G. T. Ry. Co., 50 Id. 470. The same principle is familiar in many shapes. It is the business of the jury to compensate the owner for what his landed interest will suffer from the-use proposed to be made of it by the railroad company. The-company cannot be expected or required to resort to a new condemnation whenever some new expenditure is to be made or change effected, unless it is something so plainly repugnant, to or varying from the purpose originally contemplated as to amount to a change of user. It is not necessary to consider now how far such variations must go to be so accounted, but they must be at least very serious. In the present case nothing was done beyond completing a bridge in such a way as is common and proper, if not absolutely necessary. There would be no safety in condemnation proceedings if such action would require a new condemnation.

The ease presented, as left to the jury, and as shown by the plaintiff’s testimony, no cause of action. The judgment-must be reversed, with costs of both courts.

The other Justices concurred.