* Corpus Juris-Cyc. References: Street Railroads, 36Cyc, p. 1467, n. 18. The appellee was plaintiff in the court below and filed a suit against the appellant, a corporation, alleging that some years ago the city of Jackson, by vote of the electorate, as required by section 6033, Hemingway's Code, granted to M.H. Grossman and his associates certain rights, privileges, and franchises to operate within the city of Jackson street car lines and electric and gas plants; that under and by virtue of this ordinance and franchise it became the duty of the said Grossman and his vendees to maintain and operate a street car line on South State street and Rankin street; that said franchise was accepted and said line operated by the said Grossman on said streets; that subsequently this franchise was assigned to the Mississippi Power Light Company for valuable consideration, and it became the successor and owner of the franchise and all property, rights, and duties assumed by Grossman to operate and maintain these public service utilities within the city of Jackson; that by virtue of this purchase and assignment it became *Page 378 the duty of the defendant to maintain and operate the street car line on South State and Rankin streets; that some months ago the city counsel of Jackson granted to the Alabama Vicksburg Railroad Company permission to cross South State street at grade, and attempted to grant to defendant, Mississippi Power Light Company, the right to discontinue its street car service during the construction of this work by the railroad company, and until such time as the city counsel might request the replacement of the street car service; that said railroad company has long since completed its crossing, and the defendant knew this was completed, yet the defendant, though often requested by the plaintiff and other abutting property owners to replace the street car track and resume street car service along said streets, and tho ample time and opportunity to replace the track and resume the service had been had, willfully and obstinately refused and failed to restore the same.
It is further alleged that the ordinance undertaking to give the defendant the power to suspend this operation of street car service along said streets was ultra vires and void; that it was but an attempt on the part of the city counsel to modify and amend the franchise without a vote of the electorate, as provided by section 6033, Hemingway's Code; that the plaintiff is an abutting property owner on Rankin street, on which said street cars were formerly operated, but whose operation has been suspended or discontinued by the defendant; that on his property is a residence; and that he has a valuable right to have the street car service maintained on said street; that its discontinuance has deprived him of this right, and damaged and depreciated the market value of his property situated thereon approximately one-half of its former value. He further avers that it was and is the duty of the defendant to continue said operation; that it owes him the special duty to continue to operate this line, and that by virtue of its failure so to do he has been damaged *Page 379 in the amount of two thousand five hundred dollars. Wherefore he brings suit for said amount.
This declaration was demurred to by the defendant on three grounds: (1) That plaintiff's declaration shows on its face that the discontinuance of the street car operation was authorized by an ordinance of the city; (2) that the declaration attempts to allege a cause of action against defendant because of the discontinuance of street car service with damages accruing to an individual property owner (the plaintiff), and shows on its face that there is no privity of contract between the plaintiff and the defendant; and (3) that the declaration shows on its face that the defendant is not liable to the plaintiff on account of alleged damages to his property.
The demurrer was overruled. The defendant pleaded the general issue, and gave notice under the general issue that it would introduce testimony to prove that, on account of the erection of an embankment across South State street by the Alabama Vicksburg Railway Company, and which said embankment was erected by order of the city of Jackson, through its counsel, it was necessary to discontinue the street car service on South State and Rankin streets; that the defendant would further show that said discontinuance of street car service was by order of the city counsel of Jackson, a copy of which order was appended to the notice as an exhibit; further, that the defendant would show that by the terms of said order said street car service was not to be resumed until the completion by the Alabama Vicksburg Railway Company of the erection of its embankment and track across South State street and until said city counsel should order such service to be resumed; that said embankment and track had not been erected to completion; and that the city counsel had not ordered the defendant to resume street car service on said streets.
It will be noted from the statement that the declaration did not set forth the terms and conditions and provisions of the franchise granted Grossman and acquired *Page 380 by the defendant, and did not make a copy thereof an exhibit to the declaration; neither was the franchise introduced in evidence by the plaintiff, or by any one, to show what the terms and conditions of the franchise were. The suit being one in tort, it would not be necessary to make the franchise an exhibit to the declaration, but we think the terms and conditions of the franchise were material and necessary so that the court would be advised as to the terms and conditions, rights and privileges carried by the said franchise. It not being in evidence, we are unable to see with any precision just exactly what rights were granted and what duties were imposed and what powers were reserved by the city in the way of control. The question as to whether the plaintiff as an abutting property owner has any rights enforceable in this kind of an action is not free from difficulty. It is highly important in determining the question that the court should be fully advised of the terms of this franchise. So far as we know it may have authorized the company to discontinue the operation of the street car service under certain conditions or at pleasure. We are unable to determine what its duties and obligations are, and we cannot take judicial notice of the city ordinances. Again, if the defendant is liable to the abutting property owners for damage, the authority which it gave to the defendant to suspend operation of the street car service on the streets named does not purport to be a complete abandonment, and the declaration does not show that the city was applied to to demand the resumption of the operations, and there is nothing to show that the city did permit the permanent abandonment of the street car operations on said streets. If the abandonment was not permanent, and was not authorized by the city to be permanent, manifestly the defendant could be required to resume operations by the city, and, if it did so, the plaintiff would not be entitled to permanent damages, but only, if liable at all, for damages for the inconvenience and loss incident thereto during the period of the discontinuance. *Page 381
The case below was tried upon the theory that the plaintiff's measure of damage was the difference between the value of the property with the street car service and the value thereof with it permanently discontinued, which was, on the allegations and proof before us, an erroneous measure of damages. The judgment must, therefore, be reversed and the case remanded, and we reserve decision upon the questions as they may finally appear in the light of the franchise granted. When this information is presented, we will then be able to deal with the matter with more confidence and certainty.
Reversed and remanded.