106 Tenn. 124 | Tenn. | 1900
The object of -this bill is to enjoin the defendant, a railroad corporation chartered under the laws of Virginia, 'but doing business in -the State of Tennessee, from excavating and laying a switch track along Pine street, in the town of Elizabethton, Carter County, on which street complainant is an abutting proprietor, and to recover damages for the obstruction of the street by the work in progress, and upon final hearing that the Court will order the removal of the track already laid before the service of the
On appeal, the decree of the Chancellor was affirmed by the Court of Chancery Appeals. The cause is again before this Court on the appeal of the defendant company. The principal assignment of error is that the Court of Chancery Appeals erred in holding that the side track in controversy was built on Pine street without any authority of law, and that, so far as complainant’s rights are concerned, said track 4s a nuisance and must be torn up and removed.
The material facts found by the Court of Chancery Appeals in its original and supplemental opinions are substantially as follows:
The town of Elizabethton, in Carter County, is unincorporated. Hence there was no consent of the town to lay down the track, nor was there
“Know all men by these presents, that the Cooperative Town Co. of Tennessee does hereby dedicate to the public, for use as public highways, all the streets and alleys shown and designated on the plat hereto annexed, being Plat No. 1 of the part of said company’s lands in Carter County, Tennessee; but the said company hereby excepts and reserves out of this dedication the fee simple title to all the land covered by or embraced in said streets and alleys, and all other rights and titles not herein expressly dedicated, and said company further reserves to itself the right to use and to authorize the use of all streets, alleys, commons and other public places for the location and operation of street railways, for water pipes and mains, for gas pipes, mains and posts, and for electric wires, poles and other structures for illuminating and other purposes.”
Pine . street, along' which the company’s side track has been laid, is one of the streets laid out in this plat. It is fifty feet wide, about 2,000 feet in length, and its course is nearly north and south, crossing and intersecting several other streets and alleys laid off on said map. Pine street has several residences, including that of plaintiff, and one storehouse fronting on it.
On the — day of-•, 1894, the Co-operative Town Co. sold to one J. E. Nance lots 55, 56, 57 and 58 in Block 25, fronting on Pine street about one hundred feet. Nance erected on his lot a comfortable two-story house, fronting on Pine street. The deed from the Town Co. to Nance contained this reservation, to-wit: “Reserving and excepting out of this conveyance, however, all streets, alleys and other highways indicated on said plat, and the fee simple title to the lands conveyed ' thereby.” On the 26th of February, 1896, complainant Brumit purchased from Nance the above lots, including the residence thereon, and the Court of Chancery Appeals finds that Brumit purchased said lots subject to the reservation contained in the deed from the Town Co. to Nance. That Court further finds that Bru-mit’s deed only called for the side of the street, and that he has no interest in the ’ fee of the street.
The Court of Chancery Appeals further finds that on the 24th of July, 1894, the Co-operative Town Co. made a deed of conveyance to the defendant railway company or its successors to build two standard gauge railroad tracks along and through the center of Pine street, as platted on the map and registered, and that said conveyance was duly recorded. That Court also found that,
That Court further finds that the Watauga Land Oo. became the successor of the Town Oo. and the owner of all its property. Complainant •purchased one of his lots, No. 50 in Block 25, from the Watauga Land Oo., and at the date of this purchase the B., E. & N. O. B. R. had already constructed its single track in the center of Pine street, in front of complainant’s property. It has already been stated that this single track was on Pine street when complainant purchased the other lots, including his residence, from Nance.
It should also be remarked that when complainant Brumit purchased all of his lots, two conveyances were of record from the. Town Oo. and the Watauga Land Oo., -respectively, to- the defendant, granting it, for a consideration, the right to build a side track on Pine street to connect with the narrow gauge railroad, originally owned by the East Tennessee & Western N. C. R. R.
The Court of Chancery Appeals also found ’ that in the case of Tipton v. Wright, to enforce a vendor’s lien against the Co-operative Town Co.
It appears that the B., E. & N. O. R. R. had been built from Bristol to Elizabethton in 1893, and in order to make terminal connections with the narrow gauge — the East Tennessee • & Western North Carolina R. R. — it was necessary to obtain a right of way' over the lands of the Town Co., and the effect of the foregoing agreed decree was to enable the Town Oo. to grant the privilege. Soon after said decree was entered, the Town Co. executed a deed to the railroad company — the B., E. & N. C. R. R. — for a right of way over Pine street so as to connect with the narraw gauge — E. T. & W. N. O. R. R. The defendant company, as already stated, is the successor of the B., E. & N. C. R., R., having purchased all its property and franchises.
The Court of Chancery Appeals found that, in November, 189.9, defendant company commenced to construct the side track along Pine street, about parallel with the previous track in front of complainant’s property, claiming the right to do so
It was also found by the Court of Chancery Appeals that the single track laid in the center of Pine street was used as a switch track to connect with the narrow gauge railroad, and that the additional side track put down was'- intended as a switch track, to be used for switching purposes in handling the business of the company.
The Court of Chancery Appeals also finds that, after the dissolution of the injunction herein, defendant company placed dirt and macadam on the sides of the street, leveling them up, as a general thing, with the tops of its cross-ties under
Upon these facts, the Court of Chancery Appeals held, as matter of law, that the defendant company had constructed its side track along Pine street without any legal right or authority, and that complainant’s '-easement on said street as an abutting proprietor was so injuriously affected as to entitle him to maintain a bill in his private capacity to restrain said construction. That Court adjudged said side track a nuisance, and ordered it torn up and removed, as already stated.
The Court of Chancery Appeals, in its learned opinion, cites a large number of cases from sister States ‘ in support of its conclusions. We have not had access to the authorities cited, nor have we deemed it necessary to consult them, for the reason we are thoroughly satisfied every question
The first matters to be clearly understood are the respective rights of the complainant as an abutting proprietor, and the defendant company as a commercial railway on Pine street. It must be admitted that complainant, Brumit, has no interest in the fee of the street, since his deed only calls for its sides, and, moreover, as we have seen, his grantors expressly reserved the fee. It is said in Smith v. Street Railroad, 3 Pickle, 632, viz.: “It is well settled that a steam railway is a burden not ordinarily contemplated in the dedication or condemnation of land for a public street, and, as a consequence, that the original owner, in whom the ultimate fee resides, may recover compensation for the subjection of the fee to ■ such new and independent use. An abutting lot owner, such as plaintiff is shown to be, without more than an easement of way and not owning the ultimate fee in tire soil, • certainly enjoys all that reason entitles her to claim and all that the law will allow, when she has the free and unobstructed irse of the street for all purposes of ingress and egress. For such purposes she may use the whole street, or so much of it „as may be necessary, but in doing so she cannot have the exclusive use for herself at all times, nor can she recover damages for the use of it by others, unless such
So in the case of Railroad v. Bingham, 3 Pickle, 522, which was an action by an abutting lot owner to recover damages against a steam railroad for the occupation of the street in front of her property. Plaintiff claimed, first, damages consequent upon the lawful and necessary use of a public street for railroad purposes; second, damages consequent upon the grading of tbe street by the railroad company; third, damages by obstruction of her right of ingress and egress by lawful occupation and use of street by railroad company;
As we have already seen, the deed from the Town Co. to Planee expressly reserved and excepted ont of that .conveyance “all streets, alleys, and other highway's indicated on said plat, and the fee simple title to the lands conveyed thereby.” Complainant, Brumit, purchased the property in- question from Planee, subject to said reservation. In addition to this, Brumit’s deed only called for the side of Pine street, which, as matter of law, excluded any interest in the fee of tire street. So that it is perfectly clear that complainant is in no attitude to complain that the side track proposed ' would be an additional servitude upon the fee of said street. But the Court of Chancery Appeals was of opinion that the reservation in the deed to Planee was only intended to conform to the plat and deed of dedication of the Co-operative Town Co., and that if the reservation in the Planee deed was broader than the registered reservation in the plat, it woitld be inoperative, because the rights of abutting lot owners purchasing on the faith of the dedication were fixed, etc. But we think this an erroneous view. Complainant, as a purchaser of abutting lots, must be bound by the provisions of his own deed, or that of Hance under which he held, and that deed expressly excluded any interest whatever in the fee of the streets. Moreover,
But, in our opinion, it cannot be successfully
So that,' in its last analysis, the only .question for determination upon this record is, whether or not complainant’s easement in the street has been impaired by the construction of the side track, and whether the' operation of cars thereon has been excessive. Complainant would be entitled to damages for such injuries, whether the defendant company is lawfully or unlawfully upon the street, and although the abutting lot owner, does not own the fee in the street. Bingham v. Railroad, 3 Pickle, 522.
If the defendant company creates a nuisance
In Harmon v. Railroad, 3 Pickle, 614, it was held that if a railway company, lawfully located upon a street in a city under its charter and by permission of the local government, uses the street in 'the operation of its road beyond what is necessary for the proper running of its trains, and by such excessive and improper use substantially destroys the easement of way and dngress and egress appurtenant to an abutting lot, the owner of such lot can maintain successive actions for such nuisance, recovering the damages that have accrued up to the time that each action was brought, etc. Railroad v. Bingham, 3 Pickle, 522; Smith v. Railroad, 3 Pickle, 626.
Complainant ' is entitled to an order of reference to assess his damages for the impairment or destruction of his easement of ingress and egress appurtenant to the street, and also to damages for the excessive use of the street caused by parking cars thereon, blocking the street, etc. But complainant is not entitled to a decree to tear up and remove the track, and the decree of the Court of Chancery Appeals so holding is erroneous, and the same is reversed. The costs of the appeal will be paid by the defendant company.