68 S.E. 12 | N.C. | 1910
The facts are stated in the opinion of the Court. The plaintiff, since 1903, has been the owner and in possession of a house and lot on West Market Street, in Reidsville, whereon he has continuously resided since that year. This street with its sidewalks is, and has been for more than thirty years, one of the principal thoroughfares of said town, and has been continuously used by the plaintiff as his only convenient and practical route from his residence to the post office and other public places in said town. The *400 defendant tobacco company applied to the board of commissioners of said town for permission to construct upon West Market Street, outside of the right of way of the defendant railroad company, and for a part of the distance upon the sidewalk of said street, a private sidetrack running from the line of the railroad to the door of the factory of said tobacco company, and making no other connection whatever. On 9 October, 1909, the said board of commissioners undertook to grant such license to said tobacco company, and thereafter, on 1 December, 1909, the said tobacco company entered into a written agreement with said town, whereby it undertook to construct said sidetrack at its own expense, and it further contracted with the defendant railroad company to build said track in consideration of $1,062, to be paid to it by said tobacco company. Acting under said alleged license, said tobacco company and the railroad company were at the beginning of this action proceeding to construct said sidetrack between the main business portion of the town and the warehouse of the said tobacco company, about 600 feet distant from the plaintiff's residence on the same street.
It further appeared, according to affidavits filed for the plaintiff, that the said sidetrack, if built and operated as proposed, would impair the value of plaintiff's lot, would greatly injure and partially destroy the right or easement of plaintiff to pass and repass along the said street, and would entirely destroy the right of plaintiff to use said sidewalk.
The relative positions of the line of the railroad company, West Market Street and the sidewalk, the factory of the tobacco company, and the property of the plaintiff, will appear from the map herein.
The plaintiff appealed from the order dissolving the restraining order theretofore granted. The question presented is whether the defendant, the town of Reidsville, has the power to grant license (419) to the defendant, the Penn Tobacco Company, to build on the public street and upon the sidewalk thereof a private sidetrack, from the railroad track to the warehouse of the said tobacco company, for its use and benefit, whereby the plaintiff, a resident upon said street, is deprived of his right of easement to freely pass and repass along said street and sidewalk, and the value of his house and lot is impaired.
Nearly all of the 670 feet of the proposed sidetrack is off of the right of way of the defendant railroad company, whose track, right of way and depot in Reidsville have been located for nearly fifty years. It has no power to exceed its right of way, in the absence of legislative authority, even for public purposes. In Griffin v. R. R.,
(418)
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
EXPLANATIONS.
A — Proposed sidetrack, 670 feet long.
B — Proposed sidewalk, 330 feet long.
Dotted line thus: . . . . foot of railroad fill in front of Penn's factory.
Between street line and fill at C is 46 feet; height of fill 5 feet.
Between street line and fill at D is 50 feet; height of fill 2 1/2 feet.
Two lines thus: [ ] indicate railroad crossing.
From J. L. Butler's residence to U.S. post office by West Market Street is 2,579 feet; by Matlock Street (scale measure) 2,880 feet. *402
of the city. Dewey v. R. R.,
In White v. R. R.,
The town authorities hold the streets in trust for the purposes of public traffic and cannot, in the absence of statutory power, grant to any one the right to obstruct the street to the inconvenience of the public, even for public purposes, and for private purposes not at all. Moosev. Carson,
The Industrial Siding Case,
No reason is shown why the defendant railroad company cannot lay the sidetrack upon its right of way to a point abreast the warehouse of the tobacco company. This would necessitate that company carrying its goods a few feet from its door to the sidetrack, but there are facilities for that. Certainly the defendants cannot take the public street and sidewalk, which would greatly inconvenience the public, because it would serve their own convenience.
Though the plaintiff is not an abutting proprietor, the use of this street and its sidewalk for a siding for the tobacco company and filling it up, at times, with cars, shifting about or standing, impedes the use of the street, and he is entitled to an injunction to prevent it. McManus v. R.R.,
The owner of a lot, whose use of a street is interfered with by an obstruction therein, is entitled to an injunction, although his lot is not immediately adjacent. Conrad v. Land Co.,
The order dissolving the restraining order is Reversed.
Cited: S. v. R. R.,