105 Minn. 221 | Minn. | 1908
Lead Opinion
Appellant is the owner of a lot in the city of St. Paul, having a frontage of sixty three feet on Third street and one hundred forty three on Pleasant avenue, occupied by a two-story building used for residence purposes, facing on Pleasant avenue and having a rear entrance along a five-foot passageway from Third street. Prior to the encroachment complained of, a passageway and sidewalk existed along the south side of Third street and Selby avenue to Summit avenue, and beyond. In 1906-1907 respondent constructed what is known as the "Selby Hill Tunnel,” through which it operates its electric street railway. The entrance to this tunnel is one hundred ten feet distant from appellant’s property at its nearest point.
Although the question is not entirely free from doubt, we are inclined to the opinion that the learned trial court did not give due weight to'the evidence introduced on behalf of appellant in holding it did not appear that he was in any manner specially damaged. In Gundlach v. Hamm, supra, the defendant was charged with damaging plaintiff’s business by constructing a track in a street upon which it operated engines which emitted steam, smoke, and cinders to such an extent that the air was permeated with the same, and plaintiff’s merchandise polluted, though his property was located about three hundred feet distant. The court held, distinguishing the case from Aldrich v. Wetmore, 52 Minn. 164, 53 N. W. 1012, that the damage by reason of smoke, cinders, and soot was not special and peculiar to the plaintiff, but was such as all other property owners in that vicinity suffered, whether their lots fronted on the street or not.
It seems doubtful whether there was any substantial diversion of travel from the south to the north side of the street; but it is clear that, if pedestrians who naturally passed on the south sidewalk by appellant’s property were turned in other directions by respondent filling up the space with the tunnel and its approach, at a point about ninety one or one hundred feet from appellant’s premises, it was an interference with a natural right he enjoyed by virtue of the location of his property for prospective business purposes, and that the damage likely to follow from such diversion is not the same in kind as suffered by the public generally. Such damage may not be great, but, if permanent, may be substantial.
■A feature which distinguishes appellant’s premises from property farther down the street east is the fact that no street intervened be
Respondent, at the argument, claimed that there was no permanent cutting off of the sidewalk on the south side of Selby avenue and Third street, and. that it was the intention of the company to relocate the same as soon as the street could be properly graded for that purpose. We find no evidence in the record to sustain the assertion, and are satisfied that, in so far as the use of the sidewalk on the south side is concerned, the diversion of travel was complete and permanent.
Reversed.
Dissenting Opinion
(dissenting).
We dissent on the ground that the evidence fails to show that the plaintiff has suffered any damages, by reason of the construction of the tunnel, different in kind from those sustained by the public in common with himself. Gundlach v. Hamm, 62 Minn. 42, 64 N. W. 50; Johnson v. Andengaard, 100 Minn. 130, 110 N. W. 369.