Opinion of the Court.

For the foregoing reasons the judgment of the court below is reversed, and the case is remanded to that court for further proceedings in conformity with this opinion.

MR. CHIEF JUSTICE FULLER, MR. JUSTICE GRAY and MR. JUSTICE BREWER dissented.

HOT SPRINGS RAILROAD COMPANY v. WILLIAM

SON.

ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS.

No. 93. Submitted November 11, 1889.- Decided May 19, 1890.

The refusal of the court below to grant the defendant's request to charge upon a question in relation to which the plaintiff had introduced no evidence, and which was, therefore, an abstract question, not before the court, was not error.

When a state constitution provides that "private property shall not be taken, appropriated or damaged for public use without just compensation" a railroad company constructing its road in a public street, under a sufficient grant from the legislature or municipality, is nevertheless liable to abutting owners of land for consequential injuries to their property resulting from such construction.

THE case is stated in the opinion.

Mr. John M. Moore for plaintiff in error.

Mr. A. H. Garland for defendant in error.

MR. JUSTICE LAMAR delivered the opinion of the court.

This is an action at law brought in the Circuit Court of Garland County, Arkansas, at its February term, 1883, by Curnel S. Williamson and Fannie G. Williamson, his wife, against the Hot Springs Railroad Company, a corporation organized under the laws of that State, to recover damages

Opinion of the Court.

for alleged injuries done to certain described real estate belonging to Mrs. Williamson, in the city of Hot Springs, by the defendant company.

The declaration alleged that the plaintiff, Fannie G. Williamson, was the owner in fee of lots 1 and 2 in block No. 78 and lot 9 in block No. 69 in that city; that lots 1 and 2 are separated from lot 9 by Benton Street, which is one hundred and forty feet wide, and was laid out by the general government and dedicated to the city, with the other streets in thế city, before the damages for which suit was brought were committed; that lot 9 lies south of Benton Street, lot 1 directly across the street on the north, and lot 2 lies immediately north of lot 1; that the defendant, a railroad company, organized as aforesaid, with its termini at Hot Springs and at Malvern, in Hot Springs County, in that State, by and through its agents and employés, on and prior to the 10th of December, 1881, constructed, threw up and completed in and along the centre of Benton Street, between lots 1 and 9, and running the full length of those lots, a permanent embankment of earth and stone, fifty feet wide and of great height, to serve as a road-bed for its railroad track, under a fraudulent and unauthorized contract secretly and clandestinely entered into between it and the city, for the purpose of defrauding and injuring plaintiffs; that the defendant also constructed a turning table at the southeast corner of that embankment and the northeast corner of lot 9, and immediately thereafter proceeded to lay and fix its railroad track permanently on the embankment, which thereby became and thereafter was a part or extension of its railroad; that by the embankment, extension and turning table plaintiffs and others were cut off from and deprived of the use of that street in connection with said lots, and their egress and ingress therefrom and therein impaired and destroyed; that said lots, which, by reason of their lateral frontage upon Benton Street, were of great value, were thereby greatly damaged and decreased in value to the extent of five thousand dollars; and that since the dedication of Benton Street to the city, the defendant had wrongfully appropriated almost the whole of it for its road-bed and other

Opinion of the Court.

purposes, thereby wantonly injuring plaintiffs and all other owners of land adjoining that street. The prayer of the petition was for a judgment against the defendant for $5000, and for other relief.

The defendant answered, pleading ignorance as to whether the plaintiff, Fannie G. Williamson, was the owner of the lots described in the petition, and averring that those lots were located upon Malvern Avenue, one of the original streets of the city of Hot Springs, which was laid off by the city and opened and continuously used thereafter as a street, and was never vacated by the city. Further answering, it alleged that its railroad was constructed in and upon its right of way granted it by Congress under the act of March 3, 1877, entitled "An act in relation to the Hot Springs Reservation, in the State of Arkansas," 19 Stat. 380, c. 108, § 17; and under the alleged ordinance of the city, which, it denied, had been passed clandestinely or through any fraud on its part; and also alleged that the turn-table complained of was constructed. on its right of way, and upon lots 10 and 11, in block 69, in the city, which were defendant's own property. As a further answer, the defendant alleged that Curnel S. Williamson was improperly joined as a plaintiff in the action.

At the trial of the case before the court and a jury, the following agreed statement of facts, together with a map also agreed upon as correct, was filed:

"1st. The accompanying map shows the location of Malvern Avenue, Benton Street, the plaintiff's lots, and the right of way granted by Congress to the defendant under the act referred to in defendant's answer, and approved by the Hot Springs Commission and the Secretary of the Interior.

2d. The extension claimed by the defendant under the ordinance of the city of Hot Springs consists of a strip fifty feet wide, the centre thereof on a direct line with the centre of the right of way granted by Congress and extending westward to Malvern Avenue, a distance of 130 feet.

"3. The turn-table is fifty feet in diameter; it is located as marked on the map. Lots 10 and 11, in block 69, upon which a part of the turn-table is located, belong to the defendant.

Opinion of the Court.

"4th. Gaines Avenue was located as a street of said city of Hot Springs and opened and accepted by the city in 1876, October or September; it was 80 feet wide and the northern boundary thereof was about coterminous with the northern boundary of defendant's right of way. The right of way is 100 feet wide, subject to explanation."

The map referred to shows that Benton Street and the right of way run almost east and west, the right of way extending south to the south line of Benton Street. Immediately east of lot 9, and also adjacent to the right of way, is lot 10, and immediately beyond that is lot 11. The turn-table is located partly on the right of way and in part on the company's lots 10 and 11; and appears to be about 40 feet east of the east line of lot 9, and nearly the same distance east of the western extremity of the right of way granted by Congress. Malvern Avenue runs nearly from the southeast to the northwest, and is 130 feet west of the western terminus of the right of way.

Considerable testimony was introduced on both sides, on the question of damages as presented by the pleadings, and upon that question alone the evidence was conflicting. Evidence was also introduced on the part of the defendant to show that the alleged obstructions erected by it were such as are generally used at terminal stations, and were necessary for the operations of the road. One of its witnesses testified that without the turn-table the train could not be run on the right of way within the city of Ilot Springs without great danger to life and property, for without (it) the engines could not be turned and would have to be run in back motion either in departing from the depot or coming to it. This would be specially dangerous at night, as the head-light could not be seen while the engine was in back motion."

The embankment was described by the witnesses as being fifty feet wide and several feet higher than the grade of the street, and is enclosed by a granite wall. It is 25 feet from lot 9 on the south, and 65 feet from lot 1 on the north.

The ordinance of the city council granting a right of way fifty feet wide from the western terminus of the congressional right of way to Malvern Avenue (130 feet) was also introduced,

Opinion of the Court.

and it was admitted that the company had filed its written acceptance of the same within ten days from its passage, as required by section 4 thereof. It also appeared in evidence that the city had, by an ordinance approved February 26, 1883, "authorized and empowered" the defendant "to erect all necessary and suitable depot buildings and other structures incident to the operation of its road within the limits of its 'right of way,' granted it by Congress,

and to main

tain and continue the same, or any depot buildings or other erections or improvements heretofore constructed or made by it." That ordinance further provided that that part of Benton Street, for two squares east of Malvern Avenue, "within the limits of the right of way' granted by Congress, and the extension thereto heretofore granted by the city of Hot Springs, except so much thereof as shall be required to leave open the crossing of Cottage Street, [first street east of Malvern Avenue,] is hereby vacated and closed, and the extensive [exclusive] use and control thereof is granted to the IIot Springs Railroad Company for railroad and depot purposes."

After the testimony in the case had been closed, upon request of the plaintiff, the name of C. S. Williamson was dropped from the complaint, and his evidence was also excluded from the jury.

At the request of the plaintiff the court charged the jury as follows:

"I. The court instructed the jury that the right to use streets in a city by the adjoining lot owners is property and a right of way belonging to the owner of said lots, and that no such right can be taken or injured or appropriated to the use of any corporation until full compensation therefor shall be first made to the owner in money or secured to him by a deposit of money, which compensation is irrespective of any benefit from any improvement made by said corporation.

"II. The city of Hot Springs had no right to pass an ordinance granting the defendant a right of way along Benton Street, and defendant could acquire no right to build any permanent structure or lay its track thereon by virtue of such ordinance.