114 Mich. 316 | Mich. | 1897
January 7, 1884, plaintiff became the owner of lot 43 in the city of Port Huron, lying east of Merchant street, and between the said street and the St. Clair river, and claims to be the owner of the fee of said land to the center of Merchant street. In April, 1889, the defendant company purchased the Port Huron & Northwestern Railway. The last-named company built its
When the testimony was all in, the judge charged the jury as follows:
“It being established by the uncontradicted testimony in the case that the legal title to lot 43, the premises in question, at the time the Port Huron & Northwestern Railway Company, the assignor of the defendant, entered upon and laid its main track and side tracks on the front*318 age of said lot on Merchant street, was in Calvin Ames, or his heirs at law, and that said title to lot 43 did not pass to the plaintiff at all until at least three years after the construction by" said company of its tracks on the frontage of said lot, and the plaintiff having made no proof of any assignment to him by said Ames, or his heirs at law, of his or their rights to have or collect the damages done to them by said action of said company, or their right to compensation for said appropriation of their land, and it appearing by competent and uncontradicted evidence that the said company was licensed and authorized by the city to construct and maintain its tracks in said street, the plaintiff in this action cannot recover for the diminution of the value of lot 43 caused by said appropriation of the frontage of said lot, nor can he recover any damages for any injurious effects of the mere maintenance and use of the main and side tracks of said company in said street in the usual and ordinary way in which such tracks are used; and, as no other damage is alleged or shown, it is your duty to render a verdict in favor of the defendant, and I so instruct you to do. ”
The plaintiff, appeals.
No copy of plaintiff’s deed to lot 43 is returned with the record, but it is not questioned by counsel that plaintiff is the owner in fee of the land to the center of Merchant street, subject to the rights of the public to use it as a street. It is the claim of counsel for the defendant that a railroad, when once constructed, is of such a permanent character that it is to be presumed that it will remain permanently; that when the railroad was constructed, in 1880, whatever damages were done to the premises occurred at that time, and the owner was entitled to recover not only the damages which had then accrued, but for all that might thereafter accrue; and, as plaintiff’s grantor had not assigned to him his cause of action, the plaintiff was not entitled to recover. Counsel cite in favor of this contention, Dunlap v. Railway Co., 50 Mich. 470; McFadden v. Johnson, 72 Pa. St. 335 (13 Am. Rep. 681); 6 Am. & Eng. Enc. Law, 588, note 3; New Jersey Central R. Co. v. Hetfield, 29 N. J. Law, 206. It does not seem to us, however, that these cases meet the issue here
“If the railroad company had undertaken in any legal way to obtain the right to occupy the street previous to 1873, and had obtained a condemnation of the line occupied, the question of any power to occupy a street except for crossing, and the question what rights could be reached and condemned under the statute, so as to give a title to lay and use the railway there, would both become material. It has been a matter of some 'difficulty to determine how far private interests may lawfully be interfered with when not actually granted or condemned. But there can be no doubt whatever that any entirely unauthorized interference -with any recognized right whatever is a good ground of action. In the present case there was no lawful occupancy or any claim of permission from the city shown prior to 1873, and no pretense of authority from plaintiff at any time. She has not been cut off by any supposed grant or condemnation, and the road was laid without her consent. She is, therefore, entitled to damages for such injury as she has suffered from the continued aggression. * * * It need hardly be said that nothing can be fairly termed compensation which does not put the party injured in as good a condition as he would have been if the injury had not occurred. Nothing short of this is adequate compensation. In the case of land actually taken, it includes its value, or the amount to which the value of the property from which it is taken is depreciated. * * * In cases where damage is by injury aside from actual taking of property, the rule has been to make the party whole as nearly as practicable; and where it affected the rental value or enjoyment, the same principle has been applied*320 as in other cases. There is no reason, and, so far as we can discern, no law, which allows the wrongdoer to cast any portion of an actual and appreciable loss on the party whom he injures. In such a case as this it is in the power of the company, and always has been, to have the compensation settled once for all, and to get any benefit which the law attaches to such a method of ascertainment. Until this is done, the possession is a continuous wrong, from which, as intimated in our former decision, the amount accruing year by year is recoverable. The following are cases where the damage done was, as in this case, distinct from the actual taking of property from the party injured,” — citing a large number of cases. ,
In that case the reduction in the rental value during the years sued for was regarded as a reasonable test of the amount of damages, the court saying that the reduction of rental value is a recognized element of annual damage in all cases of injuries from misuse of highways, and that there can be no question that such an occupation of a highway without authority is actionable if any actual damage ensues to the adjacent owner. The plaintiff was allowed to recover her damages for the six years prior to the commencement of the suit. We think the principle announced by the court in the Heisel Case should control this case. It is doubtless true that so much delay has occurred before bringing suit that the statute of limitations has run so as to prevent a recovery for damages for more than six years prior to bringing suit. We think the plaintiff should have been allowed to recover for any diminished rental value of his premises for the six years prior to the commenc'ement of this suit.
Judgment is reversed, and new trial ordered.