39 Minn. 286 | Minn. | 1888
Lead Opinion
Second street, in the city of Winona, is, and for ■ 30 years has been, a public street, 70 feet wide, running nearly east- .and west through the city. Plaintiff is the owner of and occupies as ! his residence a lot abutting on the south side of said street. The de- [■ •fendant, under authority of the common council, which authority the • city charter empowered the council to give, has constructed and • is operating the main line of its railroad, an ordinary commercial railroad, running to and through Winona, upon and along the north half ■ of Second street, passing in front of plaintiff’s lot, no part of the track being laid south of the centre line of the street. Safe and convenient ingress .and egress to and from plaintiff’s lot are not materially impaired. The injurious consequences to the lot are not due . • to any improper construction or operation of the road, but are such : as result from constructing and operating a railroad along a street in ' .an ordinary and prudent manner. These injurious consequences, arise from the engines and trains passing day and night, and throw- ■ -ing steam, smoke, dust, and cinders upon the plaintiff’s premises, ' . and into his house, polluting the air with offensive smells, and inter- : fering with the free circulation of light and pure air into and upon his premises, and jarring the ground so as to cause the house and ifurniture to vibrate; causing physical discomforts and annoyances to
The principal question involved has never been directly before this court. There have been, however, cases in which the decisions bore incidentally upon it. It is well settled that where there is no taking of, or encroachment on, one’s property or property rights by the construction and operating of a railroad, any inconveniences caused by it, as from noises, smoke, cinders, etc., not due to improper construction, or negligence in operating it, furnish no ground of action; as when the railroad is laid wholly on land which the company has acquired by purchase or condemnation, or in which the party has no interest, so that it does no wrong to him in constructing and operating the road, though there may be some inconvenience or damage to him arising from it, if it be such as the general public suffer, he has no legal cause to complain. Railroads are a necessity, and the public, j which enjoys the general incidental benefits from them, must endure! any general inconveniences necessarily incident to their construction" and operation. And if a railroad company even wrongfully obstructs a street abutting on one’s premises, not at the part of the street where it so abuts", unless access to his premises is thereby cut off or materially interfered with, any inconvenience that he may suffer therefrom furnishes no ground for a private action, because the wrong done is a public wrong for which the public authorities are the proper parties to seek redress. See Shaubut v. St. Paul & Sioux City R. Co., 21 Minn. 502; Rochette v. Chicago, Mil. & St. Paul Ry. Co., 32 Minn. 201, (20 N. W. Rep. 140;) Barnum v. Minnesota Transfer Ry. Co., 33 Minn. 365, (23 N. W. Rep. 538.) But if a railroad, not touching one’s premises, obstructs a street abutting on or leading to them, so as to' cut off or materially interfere with his only access to them, the inconvenience is deemed to be special, and not one common to the public, and an action lies. Brakken v. Minn. & St. Louis Ry. Co., 29 Minn. 41, (11 N. W. Rep. 124.) It is the same where one owns land abutting on a navigable river or lake, and a railroad is laid along between the land and the navigable water. Brisbine v. St. Paul
From these decisions the propositions may be stated: That the V right of recovery against a railroad company, when there is no improper construction of or negligence in operating the railroad, for inconveniences caused by noises, smoke, dust, and cinders, does not depend on the fact that such inconveniences exist, if they be such as, are common to the public at large, but on the fact that there has been a taking of the parties’ property for the purpose of the railroad, accompanied with such inconveniences, or to which they are incident; and, if necessarily caused by the company’s proper use of its own property, there can be no recovery because of them. And that, where there is a taking, such inconveniences as are necessarily incident to it, and to the use for which the property is taken, are proper elements of the damages to the party. And this further proposition (fully established and more clearly set forth in many other decisions of this court) that the rule of damage is applied only to a case where-† part of a distinct tract or lot is taken, in which case the damages only to the part not taken are to be estimated. As to that only are the damages deemed special. As to other distinct tracts or lots of
As the plaintiff does not claim to own the land in the street which |the company has taken for its road, but claims only a right or interest in the nature of an easement in it appurtenant to his lot, the question has been raised and discussed, at considerable length, whether, conceding the right or interest he claims, the acts of the defendant constitute a taking, within the constitutional provision prohibiting the taking of private property for public use without just compensation. As that provision is inserted for the protection of the citizen, it ought to have a liberal interpretation, so as to effect its ¡ general purpose. All property, whatever its character, comes within ¡ its protection. It is hardly necessary to say that any right or inter- j est in land in the nature of an easement is property, as much so as | a lien upon it by mortgage, judgment, or under mechanic’s lien laws. If a man is deprived of his property for the purpose of any enterprise of public use, it must be a taking, even though the right of which he is deprived is not and cannot be employed in the public use. In the case of a lien on land taken for railroad purposes, the company cannot make any use of the lien. It does not succeed to the ownership of it. It merely displaces it, — destroys it. So, in case of an easement. If A. has, as appurtenant to his lot, an easement for right of way over the adjoining land, and such adjoining land is taken for railroad purposes, the company does not and cannot succeed to the Basement. But it may destroy or materially impair it by rendering it impossible for the owner of it to enjoy it to the full extent that he is entitled to. Such destruction or impairment is within the meaning of the word “taken,” as used in the constitution, as fully as is the depriving the owner of the possession and use of his corporeal property.
^ I The main question in the case is, has the owner of a lot abutting fbn a public street a right or interest in the street opposite his lot, as I appurtenant to his lot, and independent of his ownership of the soil of the street, and, if so, what is that right or interest ? If he has, and the acts of the defendant in constructing and operating its railroad along that part of the street opposite plaintiff’s lot prevent or impair
We find a great many cases in which is stated, in general terms, the proposition that, although the fee of the street be in the state or ; municipality, the owner of an abutting lot has, as appurtenant to his} lot, an interest or easement in the street in front of it, which is entirely distinct from the interest of the public. Grand Rapids & Ind. R. Co. v. Heisel, 38 Mich. 62; Lexington & Ohio R. Co. v. Applegate, 8 Dana, 289, (33 Am. Dec. 497;) Elizabethtown, etc., R. Co. v. Combs, 10 Bush. 382; Haynes v. Thomas, 7 Ind. 38; Protzman v. Indianapolis, etc., R. Co., 9 Ind. 467, (68 Am. Dec. 650;) Stone v. Fairbury, etc., R. Co., 68 Ill. 394; Tate v. Ohio & Mississippi R. Co., 7 Ind. 479; Lackland v. North Missouri R. Co., 31 Mo. 180; Street Railway v. Cumminsville, 14 Ohio St. 523; Railway Co. v. Lawrence, 38 Ohio St. 41; Crawford v. Village of Delaware, 7 Ohio St. 459; City of Denver v. Bayer, 7 Col. 113, (2 Pac. Rep. 6;) Town of Rensselaer v. Leopold, 106 Ind. 29, (5 N. E. Rep. 761.) In 38 Mich. 62, 71, the supreme court states it thus: “Every lot-owner has a peculiar interest in the adjacent street which neither the local nor the general public can pretend to claim; a private right in the nature of an incorporeal hereditament, legally attached to his contiguous ground; an incidental title to certain facilities and franchises, which is in the nature of property, and which can no more be appropriated against his will than any tangible property of which he may be owner.” Although the proposition was apparently stated with care and upon deliberation, it seems to us (and we say it with diffidence, because of the eminent character of that court) that the decision of the case was a departure from the doctrine thus laid down, (and the same may be said of several of the cases referred to.) For where the railroad was laid upon a part of the street opposite the party’s lot, of which part he did not own the fee, it denied his right to recover for damages caused to his lot incidental to a proper operating of the railroad, and limited it to cases where the acts of the company, of omission or commission, amounted to a nuisance. As the , lot-owner can recover for a private nuisance, committed by the im- i proper operation of a railroad, even on the company’s own land, in ( which he has no interest, (Baltimore & Potomac R. Co. v. First Bap
None of the cases we have referred to, nor any till we come to what are known as the “Elevated Railway Cases,” attempt to define the limits and extent of the right of an abutting lot-owner in the street opposite his lot, where he does not own the fee. That it ex-i tends to purposes of ingress and egress to and from his lot is eon-1 ceded by all. And for this purpose it may extend beyond the part of the street directly in front; for, as we have seen, an action by him will lie for obstructing the street, away from his lot, so as to cut off or materially interfere with his only access to it.
The questions are asked, how does the lot-owner get an easement in the street ? what are the source and evidence of his title to his peculiar interest ? The same questions may be asked with respect to the right or interest of the public. When a street is established by statutory dedication, or proceedings of condemnation, the public derives its right through the dedication or proceedings, and the record of them is the evidence of its right. When the dedication is at common law, the evidence of the public right rests in parol. When the offer of dedication is made, and is accepted and acted upon by the public to such extent that to permit the offer to be withdrawn would operate as a fraud, the title of the public to its right is completely vested. And such title is none the less perfect because there may be no express grant of the right, and no written evidence of it. The private right is vested by the same proceedings or acts that vest the public right. There is no need of express grant in one case more than in the other. In the case of dedication, after it has become perfect, the abutting lot-owners are presumed to act with respect to their lots on the faith of it as they are also in case of condemnation. Suppose one buys a piece of land fronting on a public street, or suppose he improves it, say by erecting buildings with reference
It is, however, hardly necessary to inquire how the lot-owner gets •his private right in the street; _ for it is established law that he has a private right, which, as we have stat'ed, all the cases concede extends to the necessity of access. Access to the lot is only one of the di- j rect advantages which the street affords to it. In a city densely peopled and built up, the admission of light and, air into buildings is ’ .about as important to their proper use and enjoyment as access to % them. Light and air are largely got from the open space which the •streets afford. What reason can be given for excluding a right to the street for admitting light and air, when the right to it for access :is conceded? For mere purposes of access to the lots, a strip 10 ■or 15 feet wide might be sufficient. Yet everybody knows that á lot fronting on a street 60 or 70 feet wide is more valuable, because of the uses that can be made of it, than though it front on such a narrow strip. Take a case in one of the states where the fee of the streets is in the state or municipality, and of a street 60 feet wide. The .abutting lot-owners have paid for the advantages of the street on the basis of that width, either in the enhanced price paid for their lots, or, if the street was established by condemnation, in the taxes they have paid for the land taken. In such a case, if the state or municipality should attempt to cut the street down to a width of 10 or 15 feet, would it be an answer to objections by lot-owners that the diminished width would be sufficient for mere purposes of access to
The cases known as the “Elevated Kailway Cases” (Story v. N. Y. Elevated R. Co., 90 N. Y. 122, and Lahr v. Metropolitan Elevated R. Co., 104 N. Y. 268; 10 N. E. Rep. 528) are notable in several respects: First. Because they were the first cases (and it seems strange that they should have been) in which was squarely presented, so as to demand a direct decision, the claim of abutting lots to an easement in the street in their front, for purposes of light and air; second for the number and ability of the counsel on each side, and the thoroughness with which they discussed every point involved, and presented every argument pro and con that could be-suggested; and, lastly and especially, for the exhaustive character of both the prevailing and dissenting opinions by the members of the court. The latter case was-really a reargument of the questions decided in the earlier, and in its-opinion the court not only adhered to, but took pains to define, its earlier decision, and in- some respects to go beyond it, and give to the-principles determined a wider application than appears to have been given to them in the first case. We think that in those cases the-doctrine is unqualifiedly established thafíío matter how the abutting owner acquires title to his land, and no matter how the street was established, so that the only right of the public is to hold it for public use as a street forever, (and the public gets no greater right under a dedication,) and no matter who may own the fee, “an abutting owner j necessarily enjoys certain advantages irom the existence of an openj street- adjoining his property, which belong to him by reason of itslo-j cation, and are not enjoyed by the general public, such as the right of free access to his premises, and the free admission and cireulation of light and air to and through his property.” The doctrine was followed and applied by the circuit court of the United States for the southern district of New York, in Fifth Nat. Bank v. N. Y. Elevated R. Co., 24 Fed. Rep. 114. The general doctrine, we think, stands-.on sound reason and considerations of practical justice.
The private right in a street is of course subordinate to the public right. The latter right is for use as a public street, and the incidental right to put and keep it in condition for such use, and for no other
The conclusions arrived at are that the owner of a lot abutting on a public street has, independent of the fee in the street, as appur-
That the recovery should be limited to the damages caused by operating the railroad in front of plaintiff’s lot, and ought not to include any that might have accrued from operating it on other parts of the street, was undoubtedly the opinion of the court below when it came to make its findings of fact; for it finds as a fact no other damage than the depreciation in the rental value of the lot caused by operating the railroad on the street in front of it. The proof of depreciation in rental value, however, .was made in part by admitting proof (against defendant’s objection) of the rental value “with the road constructed on that street, and operated there as roads usually are.” There was no other evidence of depreciation. The evidence takes into account not merely the consequences to the lot from operating the railroad in front of it, but also from operating the road on the whole or any part of it, however remote from the lot. This would allow plaintiff to recover for such consequences of operating the road’ as he suffered in common with the public generally, and not merely such as were peculiar to himself. The evidence was erroneously admitted, and, as there was no competent evidence to sustain the finding of the amount of damage, the finding must be set aside. A new trial is therefore ordered of the issue as to the amount of damage, (but of no other issue,) unless the plaintiff will consent in the court below to take judgment for nominal damages merely.
Dissenting Opinion
(dissenting.) If a street or highway is so occupied or incumbered as to occasion special and peculiar injury to an abutting land-owner, an action for damages or an injunction may be sustained. But I do not assent to the proposition that such owner has property interests in the street, beyond the boundary of his land therein, (presumptively the centre line thereof,) which are the proper subject of condemnation proceedings. The opposite rule, I think, has always been accepted and acted on in this state, and is supported by the great weight of authority. It is hardly practicable to make any distinction in this respect between that portion of the street beyond his boundary and opposite his lot and adjoining land in the street on either side thereof. And it would seem to be difficult to fix upon any sound rule or safe basis for estimating and limiting the damages in such cases.
