85 Ky. 640 | Ky. Ct. App. | 1887
delivered the opinion op the court.
The charter of the. Short Route Railway Transfer Company, granted by the Legislature in 1873, provides :
Section 2. “ Said corporation is hereby granted the exclusive privilege to build, construct, maintain and operate a railway transfer company, by steam or animal power, for the transportation of passengers and freight, by the car load or otherwise, including that portion of the city of Louisville north of Main, street, from the east side of First street to the west side of Fourteenth street, for a period of ninety-nine years, dating from January 1, 1873.”
Section 3. “ Said corporation shall have the right, by and with the consent of the general council of the city of Louisville, to the use of or right of way to such streets and alleys, and such portion of the city’s wharf within the limits named in the second section of this act, as the interests of said corporation may require, and in such manner, and under such reasonable restrictions and conditions, as may be agreed upon between said corporation and the general council of the said city of Louisville. ”
A difference arose between it and the city as to the location of the road; and in the compromise.it was agreed, among other things, that the road in Crossing-First, Second and Third streets should be so elevated as to permit vehicles to pass under it. To do this it became necessary to build an elevated railway along the Ohio river front of the city; and the company being abont to do this, the appellees, who are abutting lot-owners, brought this action to enjoin it from either constructing- or operating such a road along and over Water street, from the middle line of First street to the middle line of Third street, upon these grounds:
First. That no legislative sanction had been given for the building of an elevated railway.
Second. That the appellants owned the fee to the center of the street adjoining their lots, subject only to the easement of the public in it as a street; and that any legislative grant of the right of way over it to the railway company, without providing- compensation therefor, was in violation of the constitutional provision as to taking private property for public use.
Third. That aside from the ownership of the soil, they, as abutting lot-owners, had a right to the unobstructed use of the street for travel, and for the purpose of ingress and egress ; to receive light and air thereby ; and to enjoy their property free from any inconven
The word ‘ ‘ elevated ’ ’ does not occur in the charter. It authorizes the company to construct and operate “a railroad” merely. It is, therefore, insisted that, considering the time when the charter was granted, it is improbable that the Legislature intended to authorize the construction of any kind of a railway save a surface one; that this intention .is manifest from the charter provision as to side-tracks and switches, and that corporation grants must be construed with all the strictness compatible with their -execution.
It appears, however, that only a portion of the appellee’s road is “elevated;” and from the first introduction of railroads, portions of them have been elevated Toy reason of the topography of the country, or liability to floods, or the grades desirable in cities for the convenience and safety of the public. Certainly a company chartered to build “a railroad” merely, would have the right to elevate it wherever the character of the country made it either convenient or essential; and the evidence shows that- if this road were a surface one from First to Tenth street, it would frequently be submerged by the floods of the Ohio river.
It must be presumed that the appellants own the fee-in the street, subject to the use by the public; and the-question presents itself whether the easement existing by virtue of the dedication as a street is of the same-nature as that granted to the company by the Legislature. Its power to appropriate a part of a common highway to the purposes of a railroad, without making provision for compensation to the owner of the fee, has been a fruitful subject of judicial conflict. It has been urged that it is an additional burden; a new and
Upon the one side cases may be found holding that because the term “street” had acquired its meaning before railroads were in existence, that, therefore, it cannot be presumed this character of use was intended in the dedication; and if allowed, that the limit of the easement is overstepped and the private property of the owner of the fee taken for public use, which, unless compensation be afforded, is inhibited by the Constitution. In conflict with this view many cases may be found, which hold that the dedication of a street to public use contemplates no particular mode of travel; that it embraces not only those then existing, but any that may spring up in this age of invention and with advanced civilization; and that a railroad, being but a new mode of travel, is consistent with the uses contemplated by the dedication, and does not overstep the limits of the easement already in existence.
In determining the proper uses of a highway it seems to us to be immaterial whether the abutting owner has the fee subject to the easement or not. The public right embraces all modes of travel consistent with the
It was said by the Supreme Court, in the case of Barney v. Keokuk, 94 U. S., 340: “On the general question as to the rights of the public in a city street, we can not see any material difference in principle with regard to the extent of those rights, whether the fee
Pierce on Railroads, page 234, says: “The purpose of opening a highway or street is to provide the public with a right of passage for persons on foot or riding in carriages or other kinds of vehicles. The use for which this public right is obtained is not confined to the same species of vehicles, drawn by the same kind of power that prevailed at the time of the dedication or appropriation, but admits of the passage and re-passage of such other vehicles, operated in such a mode and by such forces as an advanced civilization may require for the general convenience. The improved method of conveyance may incidentally increase or «depreciate the value of property on the highway; but provided the right of ingress and egress, of passage and re-passage, is left reasonably free to the adjoining owner, the injury is one which the law does not recognize. A railroad laid out over or upon a highway or street under proper legal authority is within the legal intent of the original sequestration or dedication, and is not an invasion of private right, entitling the owner to compensation by virtue of the constitutional prohibition, provided it is so laid out and constructed as not to be incompatible with the use of the highway in the other usual modes of passage and conveyance. It is not necessarily a nuisance, even in a large city, although it may, to a certain extent, interrupt the
The design of a railroad is to facilitate travel. It,, therefore, subserves the object of a street dedication instead of destroying it. It may, therefore, under legislative sanction, have a joint occupancy of a street with other modes of travel having the same end in view ; but it can not occupy or use it to the unreasonable exclusion or obstruction of such other modes. The limitation upon the public right is that the appropriation of the street must not be inconsistent with the end for which it was established.
Whether the abutting lot-owner owns the fee in the-street, subject to the public use, or does not, he, as such adjacent proprietor, has, however, a peculiar private right in the street which attaches to his lot. He-has a peculiar use in the street as appurtenant to his tenement, in order that he may enjoy it. This right is as much his property as the lot itself. He can claim no damage by reason of mere inconvenience or a consequential decline in value of property or rents arising .from the repair of the street; but there can be no such, exclusive appropriation of it, even under legislative-authority, as to deprive him of its reasonable use. He is entitled to its reasonable use for all the ordinary modes of passage. This’ is an easement attaching to his adjoining lot, an incident of his title to it, and he can not be deprived of it without compensation. He,, however, holds his property subject to the appropria^
It follows that the construction of a railroad along a street is not, per se, an encroachment upon the individual right of the abutting lot-owner, and whether he can complain depends not upon the fact of its existence, but the manner of its construction and operation. If he is thereby deprived of its reasonable use, he may
The structure in this case at the point where it is sought to enjoin its construction will be about thirteen and one-half feet high, supported by iron pillars sixteen inches in diameter, and from twenty-five to thirty feet apart; and where they are in the street there is ample road-way upon each side of them, while, where they are in the sidewalk, they leave ample room for passage, and-we fail to see that there is any unreasonable obstruction or exclusive appropriation of the street, while the character of the proposed structure is such that it is not likely to materially interfere with the passage of either light or air.
Before leaving this branch of the case, it is proper to suggest, that in the cases of the L. & F. R. R. Company v. Brown, Newport & Cincinnati Bridge Company v. Foote, and Cosby v. O. & R. R. R. Company, supra, the railroad was elevated either by a solid wall or an embankment which was pro tanto an exclusive appropriation of the street; but as it was not unreasonably obstructed, the complaint of the abutting lot-owners was not sustained.
The road, the construction of which is now sought to be enjoined by reason of its manner of elevation, will afford less obstruction than did the building of the roads in those cases. ■
It is urged, however, that it will be specially injurious to the adjacent lot-owners, and in a substantial .degree, because it will jar their buildings; weaken their foundations; throw sparks, smoke and cinders
Whether any special and substantial injury will result to the adjoining owners in this instance is, however, as yet a mere matter of speculation ; and if any, its character or extent can not now be ascertained. If such should accrue, its extent can be much better estimated after the road is in operation; and, at most, it would be a matter of mere damage, for which the law affords an adequate remedy.
Undoubtedly, if the structure shall be so located as to unreasonably obstruct the abutting lot-owner’s means of egress and ingress from and to his lot; or, if he suffers substantial injury by having smoke, sparks or cinders thrown into his house; or its walls be cracked by the movement of heavy trains, he would be entitled to recover for the damages directly resulting from such causes.
This is because a private right would then be invaded, and a direct substantial damage sustained. (J. M. & I. R. R. Company, &c., v. Esterle; and E. L. & Big Sandy R. R. Company v. Combs, supra.)
It was said, however, in the case of L. & O. R. R. Company v. Applegate, &c., supra:
This reason applies with peculiar force in this instance. The proposed work is one likely to redound largely to the public interest, and that of a commercial metropolis. The road will connect the railroads coming into the city upon one side'with those reaching it upon the other., thus supplying, as is shown by the testimony, a now much needed connection; while, upon the other hand, it is as yet a ■ matter of conjecture what injury, if any, will accrue to the lot-owner; and if .any, he is not remediless. "
The law, of course, will not override individual right in order- that a public benefit may accrue; but, under such circumstances, the facts should be clearly shown, and the ground made manifest before the chancellor should interfere.
Judgment affirmed,