110 P. 237 | Mont. | 1910
delivered the opinion of
the court.
This action was brought to' obtain an injunction to restrain the defendant corporation from constructing and operating a
In addition to the foregoing, the complaint alleges, in substance, that the plaintiffs have property rights in Mercury street,, in front of their respective lots, subject -only to the right of the-public to use the same as -a highway; that the defendant has-not, by an attempt to exercise the right of eminent domain, sought to condemn the plaintiffs’ rights or to acquire them by agreement or purchase; that unless it is restrained from doing
The question presented for decision is stated by counsel for appellant in their brief as follows: “If the construction and operation of the street railroad described in the ordinance is within the purposes for which the streets were established, the respondents have no cause of action. Abutting owners may suffer inconvenience, and their property may be depreciated in value by the use of the street for certain purposes, but if such use is legitimate and one which was in contemplation, or is presumed to have been in contemplation, when the street was created, there is no legal cause for complaint. There is, then, but one question for consideration on this appeal, which may be stated as follows: Is the construction and operation of the street
Under the statute (Revised Codes, see. 3259) a city or town council has exclusive control over the streets, avenues, alleys and sidewalks of ’the city or town, and the power to regulate the use of them, not only for purposes of travel thereon by pedestrians, but also by vehicles of every character for the purpose of pleasure or business traffic. Under subdivision 66 of this section, it also has the power “to grant a right of way through the streets, avenues and other property of a city or town for the purpose of street or other railroads and to regulate the running and management of the same, and to compel the owner of such street or other railroad to keep the street in repair when occupied by such street or other railroad; to regulate the speed of railroad engines, and to require railroad companies to station flagmen at street crossings.” This provision carries out the plain intent of section 12 of Article XY of the Constitution, which declares: “No street or other railroad shall be constructed within any city or town without the consent of the local authorities having control of the street or highway proposed to be occupied by such street or other railroad.” Under another provision of the Codes, the fee to the land covered by a street once established is vested in the public; for the form of dedication required of the owner, when the plat of the city or town or an addition thereto is recorded, is equivalent to a deed. (Revised Codes, sec. 3470; Hershfield v. Rocky Mt. Tel. Co., 12 Mont. 102, 29 Pac. 883.) But it is not important to inquire where the fee is vested. The respective rights of the abutting owner and the public are dependent upon the fact of dedication. In view of these provisions as well as of the rule of law recognized everywhere, the authorities which control streets and highways may use or permit the use of them in any manner or for any purpose which is reasonably incident to the appropriation of them to public travel and to the ordinary uses of streets or highways under 'the different conditions which arise from time to time. (White v. Blanchard Bros. Granite Co., 178 Mass. 363, 59 N. E. 1025.) For
It is often difficult to determine whether a new use is such an invasion of the rights of an abutting owner as entitles him to damages within the meaning of the limitation. If it is, compensation must be made before the use is installed. But it must be borne in mind that the way was created for all uses to which it might reasonably be put in view of improved methods and •the increasing needs of the public; and the limitation is to be given a construction which will not defeat this original purpose. And if the particular use to which consent has been given by the municipal authorities is in the nature of a public use, and is not more burdensome than other public uses which have been held to be within possible contemplation at the time the way was created, it is not a taking or damaging of the rights of the owner, within the purview of the limitation. (White v. Blanchard Bros. Granite Co., supra.)
That the purpose for which the defendant intends to build its railroad is in the nature of a public use must be admitted. Mining is a dominant industry in this state. In some localities it is the aE-important industry. The prosperity of the state has been due, in large measure, to it, and many of our other industries and business enterprises are almost entirely dependent upon it. This is especially true in Butte and its immediate vicinity, because there the great mass of the people gain their livelihood from their employment in the mines and reduction of ores. There, as in many other loeahties in the state, the mineral deposits are the only available natural resources, and but for the promise which they give of profitable return for well-directed investment and industry, such portions of our state would be almost entirely destitute of population, whereas they now furnish homes and the means of support for populous communities. Hence, from the beginning, it has been the policy of the state, indicated by its constitutional and statute law, as interpreted by
Since, in view of the foregoing provisions, we must conclude that the use to which the city council has given its consent is a public use, it remains only to inquire whether the installation of the use in question will result in damage to the plaintiffs, within the meaning of the constitutional prohibition.
It is conceded by counsel for the defendant that the construction of a street passenger railway upon the surface of a street, and the operation of it by means of horse-power or a trolley system is a legitimate use of the street; that it imposes no additional burden upon the fee, and that the abutting owner, whether he owns the fee or not, is not entitled to compensation for damage resulting therefrom. This concession is properly made, because this view is sustained by the decisions of the courts generally. (1 Lewis on Eminent Domain, 3d ed., sees. 158, 161, and cases cited in notes; 3 Abbott’s Municipal Corporations, sec. 844.) But it is said that the same rule does not apply to a commercial railroad, and that the one defendant proposes to build falls within this class. There is, however, a distinction everywhere recognized between what are termed commercial railroads and what are termed street railroads. The former are defined by Mr. Lewis as railroads employed in general freight and passenger traffic from one town to another, or between one place and another. The latter, he says, includes all such as are constructed in public streets for the purpose of conveying passengers, with hand luggage, from one point to another on the street. (1 Lewis on Eminent Domain, 3d ed., sec. 150.) We readily concede that a commercial railroad does not fall within the uses to which the streets of a city or town are presumed to have been dedicated. The servitudes to which they are subject, are: The right of transit by travelers on foot or in vehicles of any description; the right to transmit intelligence by letter, mes
In New York, street railroads are authorized by statute to convey persons and property in cars for compensation. It is held by the courts of that state that this authorizes such railroads to operate cars designed and intended exclusively for carrying express matter, freight or property. (De Grauw v. Long Island El. Ry. Co., 43 App. Div. 502, 60 N. Y. Supp. 163; s. c., 163 N. Y. 597, 57 N. E. 1108; Matter of Stillwater & M. St. Ry. Co., 171 N. Y. 589, 64 N. E. 511, 59 L. R. A. 489.) So in White v. Blanchard Bros. Granite Co., supra, it was held that the construction of a horse railroad along a highway from a quarry to a steam railroad, to be used for the transportation of freight only, did not impose an additional burden upon the abutting
In the case of Mordhurst v. Ft. Wayne & S. W. Traction Co., supra, it was held that the operation of an interurban railroad by electric power, through a city street upon a track constructed of T rails, with authority to convey passengers, baggage, mail, and light express with a limited number of cars, did not impose an additional burden upon the abutting property. In discussing the question whether the carrying of the articles permitted by the charter of the railroad would have this effect, the court said: “The carriage of light express matter, passenger baggage, and mail matter upon street-cars would not constitute ground of complaint on the part of abutting lot owners. If only one car is run, the street is occupied and obstructed by it to no greater extent than it would be by a street car. If two constitute a train, they will take up no more space and do no more injury than a motor car and trailer, which are commonly run upon street railroad tracks when the business of the company requires such additional .car. The fact that light express matter, passenger baggage, and United States mail matter are carried on a car does not affect the property owner, nor injure his property. The transportation of articles of this kind does not create any resemblance between the interurban electric railroad and a steam railroad carrying ordinary goods and merchandise, and results in none of the annoyances and injuries which are caused by either passenger or freight trains on such a railroad. # * * It is apparent that every objection founded upon injury to his property rights which the plaintiff can justly ■urge against the use by the defendant of Fulton street in front of plaintiff’s lots would apply with equal force to the use of that thoroughfare by an electric street railroad constructed and operated wholly within the city limits. But this court has held that such a street railroad is not an additional burden upon the street, and that the owners of abutting real estate are not en
In Montgomery v. Santa Ana W. R. Co., supra, it was said: “In the construction of modern highways, urban and suburban, the great difficulty and the prominent object has been to build and adapt them by grade, width, and structure of roadbed to the carriage of freight. Yet we are told in effect that, so far as modern methods are concerned, so far as ease, speed, and economy are involved, improvements are to be limited to the transportation of passengers; that ears with wheels adjusted to move upon fixed tracks, when applied to the transportation of passengers, are within the contemplated objects in view in opening the road or street, and therefore add nothing material to the burden of the servitude of the abutting land owner, while a precisely similar structure adapted to the transportation of freight adds an additional burden of a different character to the servitude, and cannot be tolerated without compensation to the abutting owner. An interminable string of heavy drays may thunder through the street from early morning until set of sun, a menace to all who frequent the thoroughfare and an inconvenience to all dwellers thereon; but the cars of a railway, which move usually but a few times a day, and with infinitely less annoyance to the public, upon tracks so adjusted to the surface as to occasion little or no inconvenience, cannot be tolerated. We fail to appreciate the philosophy of the distinction. On the contrary, we affirm that when a public street in a city is dedicated to the general use of the public, it involves its use subject to municipal control and limitation, for all the uses and purposes of the public as a street, including such methods for the transportation of passengers and freight as modern science and improvements may have rendered necessary, and that the application of these methods, and indeed of those yet to be discovered, must have been contemplated when the street was opened and the right of way obtained, whether by dedication, purchase, or condemnation proceedings, and hence that such a
It was held by the supreme court of Missouri, in Henry Gaus & Sons Mfg. Co. v. St. Louis, K. & N. Ry. Co., 113 Mo. 308, 35 Am. St. Rep. 706, 20 S. W. 658, 18 L. R. A. 339, that the construction and operation of a commercial steam railroad along a public street on the established grade, under the authority of the city, did not violate the rights of abutting owners, within the purview of the provision of the Constitution supra. We should not be inclined to go to the extent to which this court goes, because the use of a highway by a commercial railroad cannot, upon any just principle, be held to be within the ordinary uses of the highway. Yet the' case is authority for the proposition that the inauguration of a new use, under proper authority, within the general purposes for which the highway was created, is not a taking or damaging of the property of the abutting owner.
After discussing the cases upon the subject, Mr. Lewis makes the following observations: “It would seem to follow that the operation of express cars on the street railway tracks was a legitimate use of the street. The use of street-ears for the transportation of freight has but just begun. Whether the practice is likely to increase and become general remains to be seen. When we direct our attention to the moving freight-ear, taking the place of twenty drays, twenty pairs of horses and twenty drivers, the advantages of such a use of the streets seem obvious. It is presumably more economical. It saves wear and tear of the street, diminishes the accumulation of dirt and filth, relieves congestion, and diminishes the noise and confusion. The movement of the freight-ear would no more interfere with abutting property than the movement of the passenger-car. To the extent that the freight-car is a substitute for traffic teams on the street it thus tends to make the street quieter, cleaner, freer, and more sanitary. And since the street exists as much for the movement of freight as for the movement of persons, thene seems to be no reason why the street freight-car should not be put upon the same basis as the street passenger-car, in
On principle, the rights of the abutting owner bear exactly1 the same relation to the inconveniences which are incident to the tracks installed for the movement of passenger-cars and the movement of cars thereon, as they do to the inconveniences which arise from the conveyance of freight by the same means. It can make no difference to him what the ears are loaded with; and if the city authorities so control their construction and movement as not to obstruct access to his property, more than it would be obstructed by the movement of passenger-cars, he has no cause for complaint on the ground that his constitutional rights are invaded.
While it may be inconvenient or impracticable for freight-cars to make frequent stops to receive and discharge freight, because this would cause a substantial interruption of ordinary street traffic, this consideration furnishes no objection to the movement of ears loaded with freight between designated points along a street upon which the same freight must be conveyed in drays or other similar vehicles. It may be, also, that in a given case a street may be so narrow that to permit the laying of tracks therein for any purpose would so far obstruct access to the property abutting thereon as to destroy its usefulness. Such a case, however, would present a question entirely different from that presented here, viz., whether the city council has abused the discretionary power of control vested in it by law. While it is alleged in the complaint that the ordinance is unreasonable, the allegation is a mere conclusion, and is wholly insufficient to warrant any relief on the ground that the council abused its discretion in enacting it. (Neary v. Northern Pac. Ry. Co., ante, p. 480, 110 Pac. 226.)
Upon the facts stated, the plaintiffs have no cause of action, and hence the court erred in granting the injunction.
The order is reversed.-
Reversed.
