54 Colo. 593 | Colo. | 1913
Lead Opinion
delivered the opinion of the court:
December 9, 1907, Mary V. Macon brought suit against The Denver City Tramway Company for damages claimed to have been sustained as a result of injury to her residence property. The complaint, as amended, alleges, in substance, that since November, 1890, the plaintiff has owned and been in possession of two described lots at the corner of Ogden street and nth avenue, in the city and county of Denver, together with a two and one-half story brick dwelling house of fourteen rooms, situate thereon, and occupied by her as a residence; that prior to certain acts of defendant, hereinafter set. forth, the plaintiff’s property was of great value as a dwelling, and the location thereof one of the most desirable in the city; that Ogden street extends in a northerly and southerly direction and is thirty feet wide between the curbs in front of plaintiff’s residence; that nth avenue extends in an easterly and westerly direction; that for ten years prior to 1907 the defendant, under a franchise from the city, operated a double track' electric street'.car line from the business section of the city on nth avenue to its intersection with Ogden street; thence on Ogden street north by curves to 12th avenue; thence east to Fillmore street; that in the summer of 1907 the defendant, under its franchise, extended its nth avenue car line from Fillmore street, fifteen blocks eastward, and connected the same with its Fairmount line, and, over the protest of plaintiff, likewise constructed an additional line from its southerly track on 11 th avenue, by a sharp curve, into and upon Ogden street to 9th avenue; thence easterly and then northerly through Downing street to nth avenue, and thence west to an intersection with
A demurrer to the amended complaint was sustained and the plaintiff brings the cause here for review. The demurrer, inter alia, challenged the sufficiency of the facts stated to constitute a cause of action.
Under these provisions of the law, damages to private property, by whomsoever caused and for whatsoever purpose, must be paid; and the defendant, though armed and protected by the power of eminent domain, must respond to plaintiff, if in the construction of its road it has taken or damaged her property.
However, neither the constitutional inhibition against the construction of a street railroad in a city, without the consent of the local authorities, nor the consent of the municipality to the construction of defendant’s road, enlarged or lessened the rights of plaintiff. Her rights depend solely upon whether her property has been taken or damaged. The' constitutional inhibition recognizes the right of cities to control their streets, while the statutory provision makes it certain, as between municipalities and those constructing street railroads therein, that the latter shall make compensation for private property taken or damaged in the construction of such public works. In other words, as to the liability for compensation for private property taken or damaged, those constructing the road stand in the place of the city. So in the case at bar. If the city of Denver had constructed and operated the road in question, in the same place and manner as has the defendant, and no cause of action
A physical taking of plaintiff’s property was not essential to a cause of action in her favor, but physical damage thereto, as contradistinguished from personal annoyance or inconvenience, was. It must appear that plaintiff had some right'in, user of, or interest pertaining to the property which has been wholly or partially destroyed before she can maintain a cause of action for damages to her property. The right disturbed may be either public or private, but it must be a right which she enjoyed in connection with her property, and which gave to it an additional value, and without which, or as affected "by the disturbance, the property itself is damaged. The disturbance of the right or easement may be at a distance from the property injured, but the interference must be with some right held with regard to that property.
As said in Gilbert v. Greeley S. L. & P. Ry. Co., 13 Colo. 501, 506: “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.”
The injury sustained must be damages to her property, not incidental injuries arising from a careful exercise of legal rights by defendant in a manner that, do not invade the legal rights of plaintiff. The principle expressed in the phrase damnum absque injuria has not been repealed. — City of Denver v. Bayer, 7 Colo. 113; Denver Cir. R. Co. v. Nestor, 10 Colo. 403.
For annoyance and. inconvenience to owners of private property, arising from the lawful and reasonable acts of another; or the lawful and reasonable use by another, without negligence and without malice, of that which is his, no matter how seriously such acts may depreciate the market price of ad
Moreover, it is certain from our decisions that a municipality in this state may use or authorize its streets to be used for all ordinary and necessary uses to which city streets are usually subjected, and to such further local uses and means of conveyance as the law-making power may have authorized for the streets and thoroughfares of the entire city, and that incidental injuries arising from a careful exercise of those rights are damnum absque inj%iria>, but as to extraordinary or unusual uses or .unreasonable changes in the street, no such immunity exists. — City of Denver v. Bayer, supra; City of Denver v. Vernia, 8 Colo. 399; Denver Cir. R. Co. v. Nestor, supra; D. & S. F. R. Co. v. Domke, 11 Colo. 247; Gilbert v. G. S. & P. L. R. Co., supra; Pueblo v. Strait, 20 Colo. 13: City of Denver v. Bonesteel, 30 Colo. 107; Leiper v. Denver, 36 Colo. 110.
As said by Mr. Justice Helm, in his concurring opinion, in Denver Cir. R. Co. v. Nestor, supra; “The framers of the constitution, and the people who voted for its adoption, understood that, with this instrument in force, certain injuries suffered by the proprietor of land, through the legitimate and careful improvement of adjoining ground would continue to be wrongs for which the law provides no remedy. So, also, did the convention and the people understand that the abutting lot owner would anticipate, in making his purchase, that the street would necessarily be occupied 'by the local public for all the usual and ordinary uses of a highway; that the city would, from time to time, under the statutory powers conferred, so change and improve the street as to render it more convenient and useful for such purposes; and that incidental injuries in
And in speaking of the power of the city over its streets, in City of Denver v. Bayer, supra, we said: “In determining •what changes and improvements are most conducive to (the greater convenience of the public), the council exercises a large discretion. And unless unreasonable changes are made, or injury results to the adjoining premises through the unskillfulness or negligence of those employed, the owner thereof will not be heard to complain, though, in fact, the real value and convenience of his property are diminished thereby; for in purchasing his lot, or in relinquishing the public easement, he is conclusively presumed to have contemplated this power and authority of the municipal government, and is held to have anticipated any injury to his abutting land resulting from a reasonable and proper exercise thereof.”
And in Leiper v. Denver, supra, many cases- are reviewed, and it is held that an “abutting lot owner was bound to anticipate, in making his purchase, that the street would necessarily be occupied by the local public for all the usual and ordinary purposes of a highway, and that the city would, from time to time, so change and improve the street as to render it more convenient for such purposes, and that indirect injuries resulting to him therefrom remain now, as they existed before the constitutional provision was adopted, wrongs without a legal remedy.”
When lands are taken or dedicated for a town or city street, the nature and extent of the public right therein are well defined. Such lands are acquired for the purpose of providing a means of- free passage common to all the people. When a street is laid out it may be rightfully used throughout its entire extent in such manner as will render it most useful for a highway. And unless unreasonable changes are made therein, or it is subjected to ah extraordinary or unusual use,
Such changes and uses, if properly made and controlled, do not in any substantial respect destroy the street as a means of free passage common to all the people, nor ordinarily impose thereon an additional servitude. By the reasonable, ordinary, usual and lawful use of a right already fully vested in the public, abutting property is not thereby damaged in a manner that can be made the basis of additional compensation under the constitutional provision.
It is equally well settled that the use of the streets in municipalities for a street railway is one of the ordinary and usual purposes for which such streets and highways may be used, and does not, when properly constructed with due regard to existing, local conditions, augment the burden or servitude upon the street so as to entitle the owner of abutting property to additional compensation. — Cooley on Const. Lim., p. 683; Dillon on Munic. Cor., (4th Ed.), sec. 723; Elliott on Roads and Streets, secs. 698, 699; Booth on Street Railways, secs. 82, 83; Joyce on Electric Laws, secs. 336, 339, 341; San Antonio, etc., Ry. Co. v. Limburger, 88 Tex. 79; Rafferty v. Cen. Trac. Co., 147 Pa. 579; Wagner v. Bristol B. L. Ry. Co., 108 Va. 594; Placke v. Un. Depot R. Co., 140 Mo. 634.
On this point, in Ransom v. Citizens’ Railway Co., 104 Mo. 375, it is said: “Such a street railway as this, so laid and operated as not to materially impair access to, or the enjoyment of, the adjacent property may lawfully be placed in the public highways of the city, if expressly sanctioned by proper authority. Such a use does not impose any additional burden entitling the owner of adjoining land to compensation; nor can it be justly regarded, at the present day, as any substantial impairment of the public easement or of the private rights of proprietors of land abutting on the street.”
Testing the complaint before us by the rules announced, it is clear that no cause of action is stated therein. It contains no allegation that the railway track is above or below the surface of the street, or was in any wise improperly or negligently constructed, or that the road, as a structure, in any way hampers ingress or egress. The gravamen of the complaint is the additional number of cars operated on the line, with the consequent increase in vibration and noise by reason thereof. While it is alleged that at one point in front of plaintiff’s residence the west rail of defendant’s road is but three feet from the curb, it is not claimed that thereby ingress and egress to plaintiff’s property is affected. The inconvenience alleged- in that respect arises from “the frequency with which cars are operated upon said tracks,” and in no sense from the structure itself. The defendant is not liable for inconvenience of either character, because they are merely incident to the use of the highway for public travel. — Denver & S. F. Ry. Co. et al. v. Hannegan, 43 Colo. 122.
The mere fact that street car tracks are laid so close to an abutting owner’s property as not to permit vehicles to stand between the tracks and the sidewalk, does not constitute a cause of action in favor of the abutting property owner under the damage clause of the constitution. Wagner v. Bristol Belt Line Ry Co., supra. The right to the use of the street is the same after the tracks are laid and the cars running thereon, as it was before. Both he and the defendant cnmpany, and likewise the public generally, are entitled to its reasonable use with due regard to the rights of each and all. — Denver City Tram. Co. v. Wright, 47 Colo. 366; Carson v. Central R. Co., 35 Calif. 325, 327.
And in Rafferty v. Central Traction Co., supra, it is said that if at any time the abutting owner has occasion for the presence of vehicles on the street in front of his property to take away or deliver persons or goods, he may exercise that right for such reasonable time as is necessary for his purpose; ■and if, in such exercise of the right the passage of street cars is impeded, they must wait.
Moreover, the well recognized rule is, that in order for a plaintiff to state a cause of action under the damage clause of the constitution, he must allege facts showing that the injury to him is not only greater in degree but different in kind from that suffered by the public at large. The complaint contains
Whether street car tracks are at .the side or in the center of the street, if they damage, in the constitutional sense, an abutting property owner’s ingress and egress to and from the street, he has a cause.of action. But, as said in the syllabus of Wagner v. Bristol Belt Line Ry. Co., supra: “An abutting owner is not entitled to damages merely because his property is made less desirable and less comfortable as a residence by reason of the fact- that a street car track is laid on the side of the street next to his residence instead of in the center of the street. When the acts complained of amount simply to an inconvenience or discomfort of the occupants of the property, but the property itself does not suffer any diminution in substance, and is not rendered intrinsically less valuable by reason of the public use there can be no recovery. The property is not damaged within the meaning of the constitution.”
The conclusions we have reached herein are in accord with the principles this court has heretofore announced, and
Judgment 'affirmed.
Decision en banc.
Dissenting Opinion
dissenting:
Each case is governed by its own peculiar facts. As I read the complaint, it appears to me that it alleges facts, which, if not denied or if not explained, are sufficient to- show that the property in question has suffered such special damage as to call for compensation within the true intent and meaning of the provision of our constitution, which says, “That private property shall not be taken or damaged for public or private use without just compensation” (Const., art. II, sec. 15), as that provision has been heretofore construed by this court. The demurrer should have been overruled.
Mr. Justice Scott joins with me in this dissent.