46 Iowa 366 | Iowa | 1877
Lead Opinion
I. fThe defendant asked the court to give an instruction, which is in these words:
This instruction the court refused to give, and the refusal is assigned as error. ^
The precise question raised in this case has never been decided by this court. The case of Milburn et al. v. The City of Cedar Rapids et al., 12 Iowa, 246, cited by appellant, differs in two respects. First, the plaintiffs in that case did not own the fee in the street; second, they sought to perpetually enjoin the construction of the road. In The City of Clinton v. C., R. & M. R. R., 24 Iowa, 455, it was held that the company had a right to construct its road through the streets
In Slatten v. Des Moines Valley R. R. Co., 29 Iowa, 148, the plaintiff did not own the fee in the street. The same may be said of the case of Ingraham, Kenedy & Day v. C., D. & M. R. R. Co., 38 Iowa, 669.
It is held in those cases that a railroad company may construct its road along the street of a city, if authorized by the legislature or city. But it is not held that the company may do so without compensating the owners of abutting property if they own the fee in the street.
Whether compensation should be made in such case to the owners of abutting property, is a question upon which there is some conflict in the decisions. We are of the opinion, however, that upon a careful examination the conflict will be found less serious than it might at first be regarded.
The case of Porter v. Worth Mo. R. R. Co., 33 Mo., 128, is cited by appellant as holding the precise doctrine upon which it relies.
The plaintiff, as the owner of a lot abutting on a street along which the defendant’s railroad had been constructed, sought to recover of the defendant damages for the depreciation of the lots, caused by the occupancy of the street by the railroad.
The court said: “We think that the use of the street for purposes of a railroad, in its ordinary use as a means of travel and transportation, is not a perversion of the highway from its original purposes.” It was accordingly held that any damage to the property abutting on the street, resulting from such obstruction, is damnum absque injuria. The counsel for the defendant claimed that the plaintiff was not the owner of the street. To this claim the court made no reference.' We are left in doubt, therefore, as to how the fact was re
The appellant cites Morris & Essex R. R. Co. v. The City of Newark, 2 Stockton (N. J.), 352. In that case the court said: “ The easement of the highway is in the public, although the fee is technically in the adjacent owner. It is the easement only which is appropriated, and no right or title of the owner is interfered with.” This is an ingenious statement of the precise doctrine for which the appellant contends. But it must be observed that in that case the plaintiff had been authorized by the legislature to construct its road upon the street. After the road had been constructed and used for sixteen years, the city undertook to take up the track, and the plaintiff sought to enjoin it. The issue in that case was as to the validity of the act of the legislature. The rights of adjacent property-owners were not drawn directly in question. Besides, what the court said in regard to such rights was based upon Williams v. The New York Central R. R. Co., 18 Barb. Sup. Ct. R., 222, which case was reversed in 16 N. Y., 97, and has become a leading case in support of the contrary doctrine.
The appellant cites Moses v. P., Ft. W. & C. R. R. Co., 21 Ill., 516, but in that case the fee of the street was not in the adjacent owner. The rule in Illinois is that where the fee in the street is in the adjacent owner he must be compensated. Indianapolis & C. R. R. Co. v. Hartley, 67 Ill., 439.
It is claimed by the appellant that the rule for which it contends is held by the Supreme Court of Ohio, but our attention has been called to no case in which the precise question with which we are concerned has been drawn in issue.
In Pennsylvania the fee of the street is not in the adjacent owner. The decisions in that state are not in point.
The ruling of the court in Lexington & Ohio R. R. Co. v. Applegate, 8 Dana, 289, was based upon the assumption that the fee was not in the adjacent owner. \
The appellants cite the case of Barney v. The City of Keokuk et al., decided by the Supreme Court of the United
Our attention is called to certain language used in the opinion in the case of Barney v. Keokuk et al., above cited. It is said, in substance, that it makes no difference whether the fee is in the adjacent proprietor or not. In that case it was undoubtedly true, but where damages are sought under the Right of Way Act, it is not true, as we have endeavored to show. We see nothing, then, in the point decided in Barney v. Keokuk et al., inconsistent with the doctrine contended for by the appellees in this case.
What are the authorities which hold that the adjacent owner must be compensated where he owns the fee in the street?
We have already referred to Williams v. N. Y. Central R. R. Co., as a leading case. The reasoning of the learned judge who announced the opinion of the court in that'case is,
In Imlay v. Union Branch R. R. Co., 26 Conn., 249, the court said: “ No one can fail to see that the terms ‘railway’ and ‘highway’ are not convertible, or that the two uses, practically considered, although analogous, are not identical. * * * They are by no means the same thing to the proprietor whose land is taken. On the contrary, they suggest widely different standards of compensation.”
In Ford v. Railroad Co., 14 Wis., 616, Dixon, Ch. J., speaking of the two uses, said: “The dedication to the public as a highway enhances the value of the lot, and renders it more, convenient and useful to the owner. The use by the
Y The same doctrine is held in Pomeroy v. Chicago dé M. B. li. Co., 16 Wis., 640; Wager v. Troy Union B. B. Co., 25 N. Y., 532; Inhabitants of Springfield v. Conn. Iii/oer B. B. Co., 4 Cushing, 71; Craig v. Rochester City dé Brighton R. R. Co., 39 N. Y., 404; Trustees of Presbyterian Society v. Auburn R. R. Co., 3 Hill, 567; Schurmeier v. St. Paul R. R. Co., 10 Minn., 82; and Southern Pacific R. R. Co. v. Reed, 41 Cal., 256. ' ,
In Cooley on Constitutional Limitations, 549, the author, after collecting the various authorities, says: “The weight of judicial authority is against the power of the legislature to appropriate a common highway to the purposes of a railroad, unless at the same time provision is made for compensation to the'owner of the fee.” In Redfield on Railways, 1 Yol., 311, note, the author says, after stating the English rule (which is to give the owner of the fee in the street compensation): “The general current of American law upon this subject may now be regarded as the same as the English rule already stated.” Dillon, in his Municipal Corporations, says in Sec. 576: “The weight of judicial authority at present undoubtedly is that where the public have only an easement in the street, and the fee is retained by the adjacent owner, the legislature cannot, under the constitutional guaranty of private property, authorize a steam railroad to be constructed thereon, against the will of the adjoining owner, without compensation to him.”
To the weight of judicial authority in favor of such rule, as estimated by Judge Dillon, there have recently been added two cases above cited, Indianagpolis & C. R. R. Co. v. Hartley, and Southern Pacific R. R. Co. v. Reed.
But it is urged by the appellant that this court, while it has not decided the precise question in issue, has used language which, carried to its logical results, would support the doctrine contended for. In the Milburn case, Oh. J.
In Slatten v. Des Moines Valley Railroad Company, it was held that the embankment, constructed as an approach to the bridge, was authorized by implication by the city council, and as the council had power to change the grade of the street without liability to the plaintiff, she could not recover. It will be seen at once that, under the circumstances of the case, the embankment could riot be declared a nuisance. On the other hand as plaintiff did not own the fee in the street, she
In England it appears that a right of action is given by statute to any person who is injured by the construction and operation of a railroad, even though the person’s land is not appropriated. But it cannot be said that such right of action exists at common law, however great the injury, if the road is so constructed and operated that it cannot be declared a nuisance. Hatch v. Vt. Central Railroad Company, 25 Vt., 49.
In the case at bar the plaintiffs seek to recover under the right of way act. To enable them to do so it must appear that the defendant has taken, and holds, the plaintiff’s real estate. The defendant’s theory is that it has not done so. Its claim may be stated in the words of the court, in Morris & Essex R. R. Co. v. The City of Newark, above cited:
“It is the easement only which is appropriated, and no right or title of the owner interfered with.” It is true, of course, that it is an easement only which is appropriated, but whether it is the easement only to which the land was already subject, is the question in the case. We are of the opinion that it is an additional easement. Where land is taken for a street or highway, and damages are allowed, should they be estimated upon the supposition that the street or highway will be used for a railroad? Certainly not, for two reasons: Not one street in a hundred is or ever will be so used, and it would be improper to allow the land owner for damages which he probably will never sustain. Again, if it were certain that he would ■sustain such damages, the railroad company and no one else should pay them. Upon no principle of law can it be presumed that a person whose land has been taken for a street or highway, has been paid for the easement which a railroad company enjoys in a street or highway upon which it constructs and operates its track. Upon what ground then can the land owner’s right of recovery be denied? Can it be denied on the ground of necessity of reducing the cost of the railroad, because it is a great and desirable improvement? No one would claim that. Yet it is to be apprehended that the importance of railroads in the improvement of the country
“ It is not always easy to impose upon these companies the obligation to do in all cases what simple justice requires, and those who suffer essential, and sometimes perhaps ruinous, injuries must be content to take the law as it is.” lie. further suggests that perhaps the law should be changed by statute. To such change there would doubtless be an objection, on account of the indefinite liability to which railroad companies would be exposed. But such objection does not apply, where, as in the case at bar, the injured party is the owner of the soil upon which the railroad company’s track rests.
£We are of the opinion that the Circuit Court did not err in refusing the instruction asked by defendant.
The evidence tended to show that damage resulted to the plaintiff’s building by jarring caused by the operation of the road, and also that plaintiff’s trade was diverted. It is claimed by the appellant that such damage is consequential and therefore not recoverable.''
Ey statute the land owner is entitled to recover for such damages as he may “ sustain by the appropriation of his land for the use of the railroad corporation.” We are of the opinion that the damages are not limited to the value of the land taken, but include such damages as result proximately from the use for which it is taken. In Henry v. Dubuque & Pacific R. R. Co.,.2 Iowa, 309, the coirrt say: “The true mode of applying this measure (of damages) is to determine the fair marketable value of the premises before the right is set apart, and then again after; and the difference will be the true measure of damages.” In the same case the court say in substance that the assessment is not to be made with reference to any probable abuse of the privilege granted to the company, for the company only bargains for the legitimate use, and if it goes beyond that it will render itself liable when the act is done. Here is at least a clear implication that the assessment is to be made for such damages as will proximately result from the legitimate use of the right of way.
In Imlay v. Union Branch R. R. Co., above cited, the court say: “ Under the general statute in regard to railroads which provides that railroad companies shall pay all damages caused by laying out and making their road, the incidental injury to land adjacent to that taken and belonging to the same proprietor is to be considered in assessing damages.” •In Evansville & Crawfordsville R. R. Co. v. Dick, 9 Ind., 433, the court say: “The legislatui’e cannot authorize either a direct or consequent injury to property without compensation to the owner.” See, also, First Church of Boston v. City of Boston, 14 Gray, 214.
In instructing the jury, therefore, that they might consider
There is great difficulty in separating the damages for which a recovery is allowable from those for which it is not, yet such a separation must be made. If the whole damages sustained by plaintiffs are $1,200, as the jury found, the plaintiffs can recover only that part thereof which arises from the occupancy of their side.of the street. We can lay down no rule for its ascertainment which we think would be of any practical benefit. The damages recoverable are somewhat more than one-half of the whole damages suffered, because the plaintiffs suffer somewhat more from the occupancy of their side of the street than from the occupancy of the other. With this thought in mind the jury must allow such portion of the entire damages as to them seems right.
Dissenting Opinion
It is quite clear that this court has not decided the question involving the right of the lot owner, in case the fee of the street remains in him. City of Clinton v. C. R. & M. R’y Co., 24 Iowa, 455; Ingraham, Kenedy & Day v. Chicago Dubuque & Minn. R’y Co., 34 Iowa, 249 (256).
In my judgment the right of recovery does not depend upon the circumstance of the fee being in the lot owner. See my views expressed in Tomlin v. The D. B. & M. R’y Co., 32 Iowa, 106. I base plaintiff’s right to recover upon his peculiar interest in the street which is property. If that property be injured, if the holder be deprived of its full enjoyment, he must be compensated. Whatever may be said by judges and lawyers to the effect that the occupation of a street by a railroad is but the use of the easement by the public, the position is overtlrroAvn by the common experience and observation of all who have witnessed the effect of the occupation of a street by a railroad. The easement of a railroad is a very different thing from the easement of public travel upon a village or city street. As the lot owner has neAmr been compensated for the use of the street by the railroad, and as lie acquired his property when no such easement existed, he ought to be compensated therefor. While I concur in the conclusion of the foregoing opinion upon the first point, I would base it upon the vieivs just expressed. They are not without the support of respectable authority. See Street Railway v. Cummingville, 14 Ohio St., 546.
II. I concur in the first part of point II of Mr. Justice Adams’ opinion. The difference in the value of the premises, immediately before and after the construction of the railroad, is the criterion by which the damage is to be determined. The value may be diminished by direct injury to the building or by
The railroad cannot be built with one rail — -the two are necessary in its construction. It is a unity composed of the two rails, the ties, the ground it occupies, etc. Now, this unity injures plaintiffs’ property. The injury is not from the rail on plaintiffs’ land, but from the entire road regarded as one thing. Plaintiffs may recover, in the view of Mr. Justice Adams’ opinion, because the road is pa/rtly on their land. The road as a v/nity injures plaintiffs’ property. The rail on their land is not the cause of the injury. They ought to recover for all the injury.sustained on account of the road. But the rule of the opinion prevents recovery for the full amount of damages they have.sustained. It is in conflict with the fundamental rule which secures the recovery of damages which will fully compensate the injuries sxxstained.
It will be understood, of course, that I dissent in toto from the conclusions and arguments of the opinion of the other justices filed in this case. In my opinion the judgment of the court below ought to be affirmed.
Dissenting Opinion
It is also now the recognized doctrine in this State, that where a railroad is constructed over a street in a city, in a careful and proper manner, the owner of an abutting lot, who does not own the fee in the street, cannot recover damages for the consequential injury which he may sustain from the appropriation of the right of way. Slatten v. Des Moines Valley Railroad Company, 29 Iowa, 148; The City of Davenport v. Stevenson, 34 Iowa, 225. This doctrine has also been recognized and sustained by the most cogent reasoning by the courts of several other States;"’See Snyder v. The Pennsylvania Railroad Company, 55 Pa. St., 340; The Cleveland & Pittsburg Railroad Co. v. Spur, 56 Pa. St., 325; Case of The Philadelphia v Trenton Railroad Company, 6 Wharton, 25; The City of Philadelphia v. The Empire Passenger Railway Co., 3 Brewster, 547; Faust et al. v. The Passenger Railway Co., 3 Philadelphia Rep., 164; Moses et al. v. The Pittsburg, Fort Wayne & Chicago Railway Co., 21 Illinois, 516; Louisville & Frankfort Railway Co. v. Brown, 17 B. Monroe, 763; Hatch v. Vermont Central Railroad Co., 25
center of the street can make any difference upon the right of the owner of an abutting lot to be compensated for the use of the street by a railroad. In such case the adjoining proprietor owns the mere naked fee subject to the public easement. In the case of The Philadelphia & Trenton Railroad Company, 6 Wharton, 25 (45), the Supreme Court of Pennsylvania empdoy this language: ownership of the fee to the
“ It follows that where a public highway is used by a railroad company in common with the public, under the sanction of the legislative authority, it may enjoy such use without making compensation to the owners in fee of the adjacent lands, and that the legislature may authorize such use without providing compensation, even under the existing constitution of the state, which provides that individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners. The authority to use a public highway for the purpose of a railroad, retaining the use of such highway for all ordinary purposes, subject only to the inconvenience of the railroad, is not such talcing of private property from the’owner of the fee of the adjacent lands as is contemplated by this provision of the constitution. -The easement of the highway is in the public, although the fee is technically in the adjacent owner. It is
• The Supreme Court of the United States has sanctioned the doctrine that the ownership of the fee to the center of the street is immaterial. See Barney v. City of Keokuk, cited in the opinion of Justice Adams.
I concede that there are cases which recognize a contrary doctrine. But they are nearly all based upon the doctrine that the use of a street for a railway is an additional servitude not authorized by the original dedication. This doctrine has been expressly repudiated by this court. In Milburn v. The City of Cedar Rapids, supra, the doctrine is sanctioned that the. laying down and operating a railway track over a part of a street is not an unreasonable obstruction of its free use, nor incompatible with its original dedication. There are but few cities in this state in which the fee in the center of the street belongs to the owner of adjacent lots. Where additions are made to these, under the existing statutes, the fee vests in the corporation for the use of the public. There seems to me to be no propriety in a rule which denies recovery to part of the lot owners in a city or upon a street, and at the same time permits others, who have sustained no more real injury, to recover. I think the rule adopted in Slatten v. The City of Des Moines applies equally to the case where the lot owner owns the fee to the center of the street. Holding, for these reasons, that the judgment should be reversed, I deem it unnecessary to express an opinion upon the other questions discussed.
I am authorized to state that Seevers, J., concurs in these views.
