The plaintiff brings this action, invoking the equity powers of the court, to restrain the ■ defendant, the Minnesota, Dakota & Pacific Railway Company “from locating, constructing or operating its railway in said city from the southern limits thereof northerly across Twelfth avenue and thence westerly between Eleventh and Twelfth avenues to the right of way of the Chicago, Milwaukee & St. Paul Railway Company, until the just compensation that should be paid to the plaintiff by reason of the damag-e to his property aforesaid shall have been determined by a jury in the manner provided by law, and such compensation paid to the said plaintiff.” The complaint alleges that “the defendant railroad corporation is about to and is in the act of con-constructing and locating a railroad, depot grounds, switch yards, coal bins, water tanks, depot and engine house through, upon and over .the row of blocks in said city beginning at the southern limits thereof, through blocks 36 and 35 of Thomas’ addition to said city, which are next east of Lincoln street, as aforesaid, thense westernly between Eleventh and Twelfth avenues, as aforesaid, to the Chicago, Milwaukee & St. Paul railway right of way, tracks and depot grounds, which are located one block west of and parallel with Fourth street as hereinbefore described. And the said defendant corporation intends to and has taken and appropriated all of said blocks between Eleventh and Twelfth avenues as aforesaid, and block 36 in said Thomas’ addition aforesaid, for the purposes aforesaid, and does take and appropriate all- of blocks 38, 43, 46, 51, 54, and 59 in Thomas’ addition to 'the said city of Aberdeen,” and “that by reason of the construction, location and intended operation of the defendant’s railway, switch yards, stock yards, depot, coal bins and water tanks in the location hereinbefore described, the real estate and premises of this plaintiff hereinbefore described, located south of Twelfth avenue, will be greatly damaged and rendered practically valueless to the said plaintiff by reason of the location, construction, and. operation of defendant’s railway, switch yards, depots, freight houses, coal bins, water tanks and stock yards, immediately north of and
It was admitted on the trial that “no proceedings have been commenced on the part of the defendant to have the damages, if any have been suffered by the plaintiff, assessed jn condemnation proceedings as to the property described in the complaint.” The court find's, in substance, that the plaintiff is the owner of certain lots in blocks 37, 44, 45, 52 and 53, in Thomas' addition to the city of Aberdeen, being a row of city blocks running east and west along the south line of the city limits; that the defendant railway company owns the entire row of blocks next north across Twelfth street, apd running east and west parallel to the row of blocks in which plaintiff's lots are situated; and that the defendant company has constructed its railway tracks, depot, switch yards, and engine house thereon, and that the most southerly of said railway tracks is located 82 feet north of the north line of said Twelfth street. and 148 feet distant, at the nearest point, from the plaintiffs property; that none of plaintiff’s property is taken, appropriated, or trespassed upon by the improvements made by defendant, or in the operation of its line of railway; and that none of the streets or alleys in said city are appropriated, passed over, or occupied by the railway company at any point where plaintiff’s property abuts -said streets or alleys. •No findings is made by the court on the question of plaintiffs damages. The evidence is wholly undisputed on both sides, and
The first assignment of error is upon the failure of the court to make any finding upon the subject of plaintiff’s alleged damages. The plaintiff on the trial introduced evidence tending to show that the building of the railway depot, switch yards, water tanks, round house, coal bins, etc., on the blocks north of plaintiff’s property was exceedingly harmful and deterimental, and tended to depreciate its value as residence property, by reason of proximity thereto, and that the noise, smoke, etc., are harmful to such-residence property. Also, that'his property was rendered less accessible because of the necessary crossing of numerous railway tracks in reaching it from the business and residence portions of the city lying to the north thereof. No objection was made on the trial to the competency of evidence tending to prove the specific class or kind of damages claimed, and that question is not before us. That a failure of the court to find,-of to submit to a jury in a proper case, a material issue arising at the trial is reversible error has been settled by this court. Taylor v. Vandenberg, 15 S. D. 480, 90 N. W. 142; McKenna v. Whittaker, 9 S. D. 441, 69 N. W. 587; McPherson v. Swift, 22 S. D. 165, 116 N. W. 79. Inthe latter case this court says: “It is error for the trial court to refuse or fail to find upon any material issue of fact. * * *. Nevertheless such refusal or failure may not be ground for reversal because not prejudical to any substantial right. When the existence of the omitted finding would not change the ultimate result — as where a complete affirmative defense is established— failure to find some fact essential to the plaintiff’s cause of action will not justify a reversal. The law neither does nor requires idle acts. Rev. Civ. Code. 2431.”
Appellant’s counsel prepared and submitted to the trial court at the proper time requests for findings ,of fact on the question of plaintiff’s damages, and now assigns as error the refusal' or failure of the court to make any finding thereon. That such folding was absolutely essential to the plaintiff’s alleged cause of action is apparent. It therefore becomes necessary to inquire,
In the view we take of this case it is not necessary to enter
It is true that under section 18, art. 17, individuals and corporations, “invested with the privilege of -taking private property for public use,” are required to make “just compensation for property taken, injured or destroyed by the construction or en
This action invokes no rule of equity under which preventive relief may be had, and claims no right to equitable relief on any ground, save these, constitutional provisions, that possession shall not be taken by one who seeks to exercise the right to take private property for public use, until compensation in damages shall first be made. {Such relief is appropriate, and would be granted in all proper cases where there is a . threatened invasion of private rights of property. But the Constitution does not change or enlarge in any degree the jurisdiction or powers of courts of equity. Section 2284 of the Civil Code provides: “As a general’rule, compensation is the relief or remedy provided by the law of this state for the violation of private rights, and the means of securing their observance; and specific and preventive relief may be given in no other cases than those specified in this part of the Civil Code.” Section 2359: “Preventive relief is granted by injunction, provisional or final.” Section 2361: “Except where otherwise provided b3f this title, a final injunction may be granted
It is clear that this plaintiff has a plain, speedy, and adequate remedy in an action at law to recover the damages, if any, which have already accrued to his property by the acts of the defendant. He may recover in such action under precisely the same rule of damages which would apply in an assessment of damages in . á condemnation proceeding. Such damages as may be thus recovered the law deems adequate compensation, and therefore must be deemed full and adequate relief, and the damages are no more difficult of ascertainment in an action at law than in a proceeding by condemnation. No multiplicity of suits can be involved as a ground of equitable relief, because the damages may be, and must be, determined and fully and finally ascertained in a single action, whether it be in a proceeding by condemnation or in an action at law. “Where the right of recovery depends wholly upon constitutional provisions giving compensation for property damaged or injured, there can be but one recovery. Since the suit is necessarily one for just compensation, once for all, for the injury .to the land.” Lewis, Eminent Domain, par. 653b; O'Brien v. Penn. S. V. R. R. Co., 119 Pa. 184, 13 Atl. 74; Eachus v. Los Angeles, etc., R. R. Co., 103 Cal. 614, 37 Pac. 750; Atkinson v. Atlanta, 81 Ga. 625, 7 S. E. 692; Smith v. Floyd Co., 85 Ga. 422, 11 S. E. 850; Springer v. Chicago, 135 Ill. 552, 26 N. E. 514, 12 L. R. A. 609; Markowitz v. Kansas City, 125 Mo. 485, 28 S. W. 642; Martin v. Chicago, etc., R. R. Co.. 47 Mo. App. 452; Cass v. Pennsylvania Co., 159 Pa. 273, 28 Atl. 161.
In Lewis, Eminent Domain, par. 631, it is said: “It is now almost universally held that an entry upon private property under
It appears, however, in the case at bar, that the defendant company had acquired title to,' and had entered upon possession of, the real property upon which all its works and improvements are placed prior to the commencement of this action. There was no actual taking of any part of plaintiff’s property, nor is it shown that any physical injury thereto has actually accrued. None of plaintiff’s improvements or works abut upon any street or alley, whereby actual ingress or egress to such property is in any degree obstructed. It further appears that plaintiff’s lots
The nature of the use to which defendant may devote its own property, places upon it no- -duty to» institute proceedings by condemnation to assess damages. It is true that if a corporation or an individual is threatening to occupy, appropriate, or do actual physical damage to private property against the owner’s will, for a use and in a manner which would only be lawful through
We are now called upon to determine what particular damages may be recovered in an action at law or in condemnation proceedings, nor do we hold that only such damages are recoverable, as may result from an actual appropriation of, or actual physical injuries to, property. .The question before us is whether we shall enjoin a railway company from making improvements upon its own property without first proceeding, by a condemnation action, to assess and pay consequential damages, when such damages are already accrued, and a plain, speedy, and adequate remedy .exists in an action at law. In Searle v. City of Lead, supra, the anticipated damage to plaintiff’s freehold was direct and not consequential. It was threatened, and not consummated. It was an injury by a threatened act of the city which necessarily involved an exercise of the right and power of eminent domain, because the city could make the improvement contemplated only by a direct exercise of that power. These considerations disclose the broad distinction between that case and the one at bar. We approve the rule there announced, and are not to be understood as modifying it in any degree, as to the remedy invoked in that case. The question here is only as to the proper use of the remedy by injunction upon the facts-before us. The cases of Rigney v. City of Chicago, 102 Ill. 68, and Railroad Co. v. Ayres, 106 Ill. 518, were both actions at law to recover damages under constitutional provisions similar to our own. And while these two case's have no direct bearing on the question before us, it may be noted that relief was there sought in actions at law, and not in equity. But in the case of Rigney v. City of Chicago, supra, the court says: “The case of Stetson v. Chicago & Evanston R. R. Co., 75 Ill. 74, is relied on for the same purpose. The question presented by that case was whether, where a railroad company, under authority from a city, has located its track upon a public -street, a bill in equity will lie at the suit of an owner of lots abutting on the street to restrain the company from operating its road until the damages claimed to have been done .to the lots by reason of the construction and
In the case thus commented upon, the court says: “In Hall et al v. People, 57 Ill. 307, it was held no man could be compelled to part with his property without just compensation, and that no corporation, public or private, could rightfully appropriate private property to its own use without first tendering or paying the damages assessed under the forms of the law. A party ought not to be driven to an action against a corporation responsible or irresponsible for his' damages. This would be to take his property without first making compensation, and would be a plain violation of a constitutional right. But the damages alluded to are such direct damages as are incident to or naturally flow from the taking of private property for public uses. No allusion is made to, nor can the principles 'of that case be applied to consequential damages not the result of taking private property. It was never intended to apply the principle to the latter class of cases. English statutes contain provisions, in substance, the same as the statute we are considering, and have been the subject of judicial construction. A leading case is Hutton v. London & S. W. R. W. Co., 7 Hare, 26. It was rilled in that case, in the event of damages to a party whose lands are not entered upon, but are injuriously affected by the exercise of the powers of a .railway company upon their own lands or upon the lands of another party, and for which compensation is required to be made by section 6 of the Railway Clauses Consolidation Act (8 Vict. c. 20),
In the case of P. & R. Ry. Co. v. Schurtz et al., 84 Ill. 135, that court also uses the following language: ‘‘As we have seen, the fact a party has or might sustain injury indirectly constitutes no valid reason why a corporation may not enter its own lands, or upon land of others in which he has no interest, to construct a railway or other public improvement. That is this exact case. The objectionable track is constructed wholly in the street, the fee of which is conceded to be in the municipal corporation granting the license. No property of complainants has been taken for public uses, nor is there any reason for condemning any portion of it. And if the owners have sustained any damages as a result from what the railroad company has done, under its charter, on other lands under a license from the owner of the fee, redress can be had in an appropriate action at law. Such cases can be referred to no general head of equity jurisdiction. As was said in Stetson v. Chicago & Evanston Railroad, supra, the party complaining will be left to his action at law. When he has settled the question of his right to damages, and ascertained the measure, if any reason exists, as on account of insolvency, why he cannot have execution of the' same, equity will then assist him by injunction or otherwise, but not before.” See, also, Krone v. K. C. E. R. R. Co., 50 Hun. 431, 3 N. Y. Sup. 149.
We hold, therefore, that upon the facts presented in this case the plaintiff was not entitled to injunctive relief, and the judgment' and the order denying a new trial are affirmed.