23 Kan. 585 | Kan. | 1880
The opinion of the court was delivered by
The defendant in error brought an action in the district court of Atchison county, against the Central
We see no error in this ruling. The petition alleges the ownership of the lot, that it abutted on this alley, which of course gave a" right of ingress thereto and egress therefrom, and which right, personal and of special value to the, plaintiff, the railroad company had destroyed by its manner of
While a railroad company may use a highway, it cannot confiscate it; at least, a mere license to occupy does not give a right to destroy it. So long as it is a highway, the public use cannot be destroyed. And whenever a railroad company occupying a highway so lowers, or fills or cuts it up as to prevent its use as a highway, the public may interfere and prevent such manner of occupation. And any individual sustaining special injury from such occupation may recover his damages therefor. A railroad company has no higher rights in a highway than an individual — it may share in its -use, but cannot monopolize it; and the owner of a lot abutting on the highway, and who has special need thereof for ingress to and egress from his lot, is specially damaged by any monopolizing of the use of the highway by a railroad company. Here, the appropriation charged is in the manner of construction, and in leaving its cars constantly standing upon the track. Either is a wrong, giving plaintiff a- cause of action. (Haynes v. Thomas, 7 Ind. 38; E., &c., Rld. Co. v. Combs, 10 Bush, 382; J. M. & I. Rld. Co. v. Esterle, 13 Bush, 667; Stetson v. C., &c., Rld. Co. 75 Ill. 74; Street Rly. v. Cumminsville, 14 Ohio St. 523.)
The other and more important question worthy of notice is the measure of damages. The court found that, from the manner in which the railroad track was constructed, and left to remain, the plaintiff was damaged in the sum of $120. Upon what method of computation this result was reached, the findings do not advise. From them alone it could not be said whether this was simply the damages suffered by the
We may remark generally as to the testimony, that it was very full and specific as to the condition of the alley prior to and after the laying of the track, the relations of the alley to the plaintiff’s premises, the manner and frequency of its use by him, and all other circumstances from which injury, whether temporary or permanent, could be deduced. And even if the inquiry were limited to the mere temporary damages, we are not entirely clear that evidence of value was incompetent; though see Bathishill v. Reed, 37 Eng. L. & E. 317; Hopkinson v. W. P. Rld. Co., 50 Cal. 194; Pinney v.
But conceding that the court treated the obstruction as a permanent one, and measured the damages accordingly as for a permanent depreciation in the value of the property —and we are inclined to think such was the view actually taken — was the ruling erroneous? It will be noticed that the petition counted on obstruction in two ways: first, by the track itself; and second, by permitting cars to remain an unnecessary and unreasonable length of time on the track. .The finding ignores this latter cause of inquiry, and awards the-damage solely in consequence of the former. Now the latter injury is obviously and in its nature temporary. It constitutes a nuisance to-day which to-morrow may cease. At any rate, it is fluctuating, and depends on the daily action of the company. It is not a nuisance which in any sense can be regarded as permanent. For such injuries, it may well be that only such damages as have been sustained by the conduct of the company prior to the suit are recoverable. There can be no presumption that the company will continue the wrong. So if the injury charged was in the digging up the alley for the purpose of laying the track, such an obstruction as continues- only during the process of construction, and which ceases when the track is completed — that is but a temporary wrong. But here the wrong charged is, that the track, as it stands after completion, so occupies the alley as toexelude other use, and prevent ingress and egress; and the testimony abundantly shows that the company considers such manner of occupation necessary for its purposes, and has so laid the track with reference to its own necessities. " Having reference to its own uses and purposes, there was no negligence in the construction; the work was well and properly done. The wrong consists in this, that if its use of the alley continues, the plaintiff’s use must cease. Now is it not to be presumed t-hat when the company thus laid its track it intended a permanent use of the alley, a permanent dispossession of plaintiff from its use? — and may not the plaintiff,
‘‘The state having in some form provided for and created a certain easement, may at its will abandon it, or change it to some other easement, or restrict or enlarge the use of it, and generally do' with the creature of its authority what it pleases. A common highway may thus be qualified by the laying of a railway track-upon it; a navigable stream may be bridged or dammed; awnings may be permitted above a city street, and covered areas below it; navigation companies may be given special privileges in the public streams of the state, and so on. In these cases the state only restricts or narrows its own right; and the right of the individual, which is only a part of the public right, can be no broader than that which-the state has retained.”
While the amount in controversy here is small, the principle is important. A net-work of railroads already covers the state, and the iron track is being pushed in every direction. It will soon touch every city and town and village, and in the nature of things must occupy many highways and streets. Frequently, conformity to the established grade of the highway may be impossible. Sometimes there may be express grant of authority to alter the grade to the extent of partially or totally obstructing other travel; more often, as in the present general law, simply license to occupy, with the duty of restoring the road to such a state as not to impair its usefulness as a highway. (Comp. Laws 1879, p. 224, §47.) Of course, the controlling and supervising power of the state always remains. But where, occupying under' the general law, a railroad company so changes the grade as to obstruct ingress and egress, must the lot-owner treat it as simply a continuing nuisance, for each day's continuance of which he has a separate action, and so multiply suits with no benefit to himself and great injury to the company, or may he not treat if as a permanent injury, recover for its effect upon the
In Haynes v. Thomas, 7 Ind. 38, it is said: “The right to use a street in a town adjoining a lot abutting on it is as-much property as the lot itself, and the legislature has as little power to take away one as the other. Whether the act of dedication transfers the fee from the donor to the public, is not a material inquiry.” In Elizabeth, &c., Rld. Co. v. Combs, 10 Bush, 382, the court says: “It is well settled, both here and elsewhere, that the owners of lots have a peculiar interest in the adjacent street, which neither the local nor general public can pretend to claim — a private right in the nature of an incorporeal hereditament, legally attached to their contiguous ground — an incidental title to certain facilities ' and franchises assured to them by contract and by law, and which are as inviolable as the property in the lots themselves.” And in Cooley on Torts, p. 616, following the quo
Without pursuing this argument further, we conclude that where the injury springs from the manner in which the track as completed affects access to the lot, the lot-owner may treat it as a permanent injury to the lot, a quasi condemnation of a certain interest in his property, and recover the consequent depreciation in value, and that such recovery is an assent on his part to such manner of using the highway by the company, and concludes both him and all subsequent owners of the lot.
There being no other question of importance, the judgment will be affirmed.