delivered the opinion of the court.
The matters requii’ing consideration in this case appear somewhat complicated at first, though they are really quite simple. In general terms they may be stated thus: A railroad company lawfully constructs and operates its road, without negligence, in the immediate vicinity of private real property, but without touching the same. It builds and operates the road across a public street upon which such real property is situate, though not in front of the same, and thereby causes obstruction to the street by passing trains, and thus renders such property less valuable. Under such circumstances has the owner of the property a cause of action against the railroad company for the damages thus occasioned?
Before considering the legal aspects of this question let us take a further survey of the premises. The main line of defendant’s road runs through Vater street, about two hundred feet distant from the plaintiff's property. Between the main line and plaintiff’s property lies the south half of block 42, which is the private property of defendant, through which defendant’s side track runs. Plaintiff’s property consists of a piece of land one hundred and forty feet in length by one hundred feet in width, situate in the north half of block 42, being the northwest comer of said block, and is bounded on the north by Front street, on the west by Twelfth street, and on the south by the alley separating the north half of block 42 from the south half. The streets are eighty
From this it appears that the streets and the alley bordering on plaintiff’s premises, and by which he gains access thereto, are entirely unobstructed. The corpus of his property is not affected by any physical contact with the railroad tracks, nor is any street or alley, so far as the same borders on his premises, in any way interfered with. Twelfth street and the alley, so far as plaintiff’s property abuts upon them, are entirely unobstructed, and Front street is entirely untouched by the railroad. It is true, when plaintiff goes southward on Twelfth street, he encounters the side track at a short distance from his house, and the main line a little further on; but in this respect he is affected in the same manner only as the general public. It does not appear that his use of Twelfth street to the southward of his premises is other or different than that of the general public. He may or may not use the street more frequently in that direction than other people; but that is not the test. One traveler has no more legal ground of complaint on account of an obstruction in the public highway than others, unless he be entitled to use the highway at the point of such obstruction for a different purpose than other people, or has suffered some special injury therefrom. The fact that he may be more frequently inconvenienced thereby does not give a cause of action.
From the agreed statement of facts upon which this cause was tried it appears that the damage suffered by plaintiff on account of the proximity of defendant’s side track and main line arises solely from the obstruction to Twelfth street caused by passing trains. No other kind of damage is specified, and we are not at liberty to infer
The constitution of Colorado, article 2, section 15, provides “that private property shall not be taken or damaged for public or private use without just compensation.” It is admitted that the use of defendant’s side track for switching cars across Twelfth street causes an obstruction to the street, renders plaintiff’s property less valuable, and that plaintiff had thus suffered damages. Hence it is claimed with much confidence that by this admission the plaintiff’s cause of action is established. Let us examine this claim. The constitutional provision above quoted has already received the careful consideration of this court, and has been clearly construed in its application to certain facts and circumstances; but the determination of this case will require its further consideration and construction. Private property must be taken, or private property must be damaged, before a cause of action arises. The damage must be to the property, or its appurtenances, or it must affect some right or interest which the owner enjoys in connection with the property, and which is not shared with or enjoyed by the public generally. It is insisted, however, that by the wording of the agreed statement the real property belonging to plaintiff, as described therein, is admitted to be damaged, in that it is rendered less valuable by defendant’s use of Twelfth street for railroad purposes. Even this admission is not sufficient, of itself, to give a complete cause of action. The fair import of the agreed statement is that the damages which the plaintiff suffers are all referable to the obstruction in Twelfth street.
Notwithstanding the broad terms of our constitution, and the unqualified expressions of certain judicial opinions, we are not prepared to say that whenever a depreciation in private property is caused by some public or private improvement the owner of the property thus depreciated may recover compensation against the party making such improvement. It is probable that, in consequence of every improvement resulting from new inventions or discoveries, the private property, rights or interests of some person or persons have been damaged or injuriously affected. In many instances the construction and operation of railroads have driven stage companies and post-chaises out of existence, and rendered the property invested therein, as well as such business, comparatively valueless. It is sometimes asserted that railroads are an advantage to large places, but a disadvantage to small ones. Undoubtedly, a small village may be seriously injured by the construction and operation of a railroad in its vicinity, provided it does not come near enough for the convenience of trade and travel by its inhabitants. We are not aware, however, that it has ever been contended in such cases that the proprietors of such stage routes, or the property owners in such villages, have a cause of action against the railroad companies for the depreciation of their property.
It may be susceptible of demonstration that every railroad company running its trains across a street or public highway causes damage or inconvenience in a greater or
These views are in harmony with those expressed upon the question considered in City of Denver v. Bayer, supra. In that case it was held that the owner of property abutting on a public street had a special property, an easement, in the street in front of or adjacent to his own property, for the purposes of ingress and egress to and from such property; that for such purposes he had a peculiar interest in the street different from that of his neighbors or the general public; and that, if such easement were taken or damaged for public or private use, it was a taking or damaging of his property, within the meaning of the constitution, for which he was entitled to just compensation. In this case it is not shown that the obstruction was at a place affecting the ingress or egress to or from plaintiff’s property. Certainly, it cannot be maintained that every person owning property
In the case of Jackson v. Kiel, ante, p. 378 (decided at this term), the property was held to be damaged by a railroad crossing one hundred and thirty-two feet distant; but the property in that case was situate on a cul-de-sac, and the occupation of the street for railroad purposes was such as to completely cut off access to the property by means of vehicles; yet in that case Chief Justice Helm was careful to say that the owner “ could not recover for any general inconvenience thus occasioned, which he may have suffered in common with the general public; but for the special and peculiar injury shown in this case he was doubtless entitled to compensation.”
Counsel for appellant asks us to follow the case of Rigney v. City of Chicago, 102 Ill. 80, in which the supreme court of that state, construing a constitutional provision similar to ours, say: “In all cases, to warrant a recovery,- it must appear there has been some direct, physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage, with respect to his property, in excess of that sustained by the public generally.”
We cannot see that the application of this rule to the facts before us will save the plaintiff’s case. In the first place, wherein has it been made to appear that the obstruction resulting from the railroad crossing causes any direct, physical disturbance of a right which the plaintiff enjoys in connection with his property f The right to use and enjoy Twelfth street is a right belonging to him
But it is insisted that the rule allows a recovery when the damage is merely in excess of that sustained by the public generally. Giving the rule this broad interpretation, it avails plaintiff nothing in this case; for, as we have seen, it does not appear by the agreed statement that plaintiff’s damage exceeds in any degree that of the public generally. But this is not our construction of the rule in the Rigney Case. Considering the facts of that case in the light of the whole opinion, and in connection with the entire rulé, as above quoted, we are of the opinion that the clause in which the word “excess ”appears must be construed as meaning damage different in kind from that sustained by the public generally. To hold that damage may be recovered w'hen the difference is in degree merely, would lead to difficulties practically insur
An analysis of other cases relied on by counsel for appellant will show that they are clearly distinguishable from the present case, though it must be admitted that the constitutional provision under consideration has, in some states where it exists, received a construction somewhat variant from the views expressed in this opinion. Nevertheless, we think, upon principle as well as by the better authorities, we have given a consistent and reasonable construction to the language of our constitution,— a construction capable of definite application, and which, as a general rule, is calculated to secure substantial justice, without involving litigants in unnecessary difficulties respecting their legal rights and liabilities. The judgment of the district court is affirmed.
Affirmed.