54 Iowa 255 | Iowa | 1880
Lead Opinion
That a railroad company may locate and build its road in the public streets of a city or town in this State, without the consent of the corporate authorities of such city or town, has been definitely settled by frequent decisions of this court. City of Clinton v. C. R. & M. R. R. Co., 24 Iowa, 455; Chicago, Newton and Southwestern R. Co. v. Mayor, etc., 36 Id., 299; Cook v. City of Burlington, 36 Id., 357; Slatten v. Des Moines Valley R. Co., 29 Id., 148; City of Clinton v. C. & L. R’y Co., 37 Id., 61; Davis v. C. & N. W. R. Co., 46 Id., 389.
. It is also well settled that such right is subject to equitable control, and proper police regulations, and if a railroad be constructed upon a street in such a careless, improper or negligent manner as to be an injury to the owner of property abutting upon the street, he may recover damages by reason of such careless, negligent and improper construction, provided his injury be special and not common to the general public. Cadle v. Muscatine Western R. Co., 44 Iowa, 11; Paris v. C. & S. W. R. Co., 43 Id., 636; Frith v. City of Dubuque, 45 Id., 406.
This court has never determined that a person cannot recover damages for special injuries to his property by reason of the construction of a railroad in the street of a city; and, the right to construct being subject to equitable control and proper police regulations, the ordinance of the city of Des Moines prescribing the extent to which Yine street should be occupied by railroad tracks was just such an ordinance as it had the power to make and enforce, provided it was not an unreasonable restriction upon the railroad company. That it was not unreasonable must be presumed, in the absence of a showing to the contrary. The allegations of the petition being conceded by the demurrer to be true, Eobert Cain un
The main ground of the demurrer is that the plaintiff cannot recover because the damages which accrued to the husband in his life-time were entire, and were capable of being determined at the time the side track was laid. In other words, it is said, if the husband had commenced an action he would .have recovered not only such damages as had then accrued, but all subsequent damages, because the railroad track was a permanent structure, and the damages were susceptible of immediate estimate. To sustain this view, reference is made to Powers v. Council Bluffs, 45 Iowa, 652. That was an action against the city for constructing a ditch along a public street in such a negligent manner that the plaintiff’s property was injured, not from the original construction, but by reason of the action of the water in washing away the bottom and sides of the ditch along the plaintiff’s lots. It was held that the damage was original, susceptible of immediate estimation, and was the difference between the value of the lots as they would have been if the ditch had been properly constructed and the value of them as they were, with the ditch as it was. It is said in that case: “While no infallible test can be applied to enable us to determine whether a structure is permanent or not, inasmuch as nothing is absolutely permanent, yet, when a structure is practically determined to be a permanent one, its permanency, if it is a nuisance and will necessarily result in damages, will make the damages original.”
The broad distinction between that case and the case at bar is that the damages in the former, necessarily resulted
The general rule is that every continuance of a nuisance is a fresh one, and that successive actions may be maintained for damages so long as the nuisance is continued. This principle has been so often announced that a citation of cases seems scarcely necessary; a few will suffice. Staples v. Spring, 10 Mass., 72; Holmes v. Wilson, 10 Adolphus & Ellis, 503; Blesh v. C. & N. W. R. R. Co., 43 Wis., 183; Carl v. The Sheboygan & Fond du Lac R. Co., Sup. Ct. Wis., 1 N. W. Rep., 295.
Having found that the damage alleged in the petition is not original but continuing, and that successive actions may be maintained, so long as it is continued, it remains to be determined whether the' plaintiff can maintain an action, she being tlie occupant of the property as her homestead. That
Eeversed.
Rehearing
SUPPLEMENTAL OPINION.
A petition for rehearing having been filed, we have re-examined the case in the light of it, but have reached the same conclusion as heretofore. It has seemed to us proper, however, in view of the importance of the principles involved, to set forth our views with somewhat greater fullness.
The plaintiff is in the use and enjoyment of the premises as a homestead. She comjilains that in 1873 the street upon which the premises abut was obstructed by a side-track which is still used and maintained by the defendant, and that by reason of the side-track and its use she has sustained special damages. The opinion holds that if the enjoyment of the plaintiff’s right is impaired or prevented by a wrong doer, she may maintain an action.
To this we have to say that, having a mere right of occupancy, she could not of course recover for any injury to the reversionary interest. But we think the petition shows an injury to her interest. It shows that the use of the side track has so shaken the walls of the house as to render it almost worthless. If this is so, we think it sufficiently appears that her right has been impaired, although it may be but a mere right of occupancy. But the petition further avers that the use of the side track has rendered the building unfit for a dwelling, and that the plaintiff has suffered great annoyance and disturbance. This is certainly a sufficient allegation of injury to her interest.
It is insisted, however, that there may be debts against the estate of her husband for which the homestead can be made liable, and if so that it does not appear that the plaintiff has even a right of occupancy.
She has a right to occupy until her right has been divested. Her occupancy has been under such right, and her injury has not been less, by reason of the possibility that her right may be divested by the enforcement of claims against the estate.
Where it is exercised without abuse, as we presume it was in this case, the restriction imposed by the council must be respected. Any use of the street by the company in excess of the restriction is unlawful. It becomes a nuisance. Now any person sustaining special damage from such obstruction of a street as amounts to a nuisance can maintain an action for such damage, and that, too, without owning the fee of the street obstructed. Ingram at al. v. Railroad Company, 38 Iowa, 669.
But it is said that it is not shown that the use made constitutes a greater obstruction than the use allowed by the council.
Whether, if the damage is not greater, the plaintiff might not still recover, if the damage results from a prohibited use, we need not determine. The track was laid twelve feet nearer the plaintiff’s house than the ordinance allowed, and she avers that she has suffered annoyance and disturbance from the proximity of the cars. That means, by any fair construction of the petition, that she has suffered damage
The ordinary rule is that where a person obstructs a street so as to cause a nuisance, and special damage to a person, the person injured can maintain an action only for damages sustained prior to the commencement of the action, the damages being regarded as continuous. Hopkins v. Railroad Company, 50 Cal., 190.
This is so for the very obvious reason that it is to be presumed that the obstruction will be removed, and with such presumption it would be unjust to allow a recovery for prospective damages. Now, there has never been a time since the track in question was laid when it was not subject to be removed if the city council had power to pass the ordinance, as we hold it had. Some nuisances are of such a character that they cannot be abated. Powers v. Council Bluffs, above cited. In that case nothing could be done except to arrest the action of the water by applying a remedy upon the plaintiff’s premises. But the nuisance in question is not of that kind; all that is required is to move the track in question toward the center of,the street or take it up.
It may be that the interest of the defendant, and the interest of the public through the defendant, is very greatly sub-served by the use of the track where it is, and it may be that the city council would be justified in modifying its ordinance so as to allow it to remain. But we have nothing to do with that question. ■ The laying of the track and the use of the track are prohibited by the ordinance as it stands. "While so prohibited the track and use constitute a nuisance, and the nuisance-being of such a character that it can be abated, it is
It appears that in that case not only the r,oad-bed of the railroad was built upon the highway, but a bridge in the highway was taken out and a railroad bridge built which was impassable by the public using the highway. In this conjuncture the question of course arose whether the railroad should yield to the highway or the highway to the railroad. The court say: “ The railroad is, in its nature and design, and use, a permanent structure which cannot be assumed to be liable to change.” The railroad could, of course, have been removed. It was permanent, then, only in the sense that it ought to be so considered. The reasoning through which the conclusion was reached is not very fully set out, but reasons which might lead to such conclusion are abundant. The highway bridge had been wholly destroyed and no removal of the railroad would have restored the bridge. The railroad was constructed for the public convenience, and,- as might be presumed, where proper engineering demanded. The cost of providing such highway as was necessary for the diverted travel was doubtless much less than the cost of removing the railroad and the restoration of the original highway.
"Whether a railroad structure which obstructs a highway or street should be deemed permanent, not being such in the nature of things, must depend npon the nature of each case. We see nothing in the case at bar to justify us in holding that
But it is said that if this view was correct in the outset it is not so now, because so much time has elapsed since the track was laid, it should for that reason be'deemed permanent. In our opinion this position cannot be maintained. A right to continue a public nuisance cannot be acquired by prescription. Pettis v. Johnson, 56 Ind., 139.
It follows that the.damages are not original but continuous. The maintenance of the'track itself is, we think, a cause of damage, but the damage arises mostly from the continued use of the track, as held in the original opinion, all use, even though ordinary in its character, being improper.
In our opinion the petition for a rehearing must be overruled.