| S.C. | May 15, 1850
delivered the opinion of the Court.
1. The plaintiff’s complaint undergoes some variation in the three counts of his declaration, but the substance, beyond which it is not any where extended, is that by excavations and embankments in public streets, by which his squares are bounded, the defendants have obstructed his way into and from his squares, and by this consequence and other injurious consequen
The only way, which the evidence shews that the plaintiff ever used to his house or farm on his squares, is through his gates in the S. E. corner of square 4, opening upon Blanding street. That way has been in no wise obstructed by any thing that the defendants have done: The excavations which have been made in Laurens-street, and near to the crossing of the Rail Road in Blanding-street, might interfere with entrance into plaintiff’s squares, if entrance was desired at points next to those excavations; but at all such points, before the commencement of defendants’ operations and ever since, the plaintiff has had an unbroken fence; and whatever improvements he may contemplate or imagine, he does not appear to have been as yet hindered in any use of his squares which he desired.
The plaintiff has not then shewn that right to maintain his private action for a public nuisance, which would have arisen frond evidence that his only way to-his close had been obstructed by th.e stopping of the highway, (Year Book, 27 H. 8, cited 2 Bing. N. C. 281); or from evidence that any direct loss of profits and advantage had resulted to him more than to others, from the obstruction of any way that before had been used to his close, (Wilkes vs. Hungerford Market Co. 2 Bing. N. C. 281); or from evidence that any actual harm had been suffered by him peculiarly, from the obstruction of any highway. (Bac. Abr. Nuisance, D ; Chichester vs. Lethbridge, Willes, 71).
The plaintiff, however, insists mainly upon the deterioration in the value of his squares. In the opinion of various witnesses. his squares have, by the operations of the defendants, been rendered less suitable for private residences, and less valuable if brought into market; but no sale of them appears to have been lost. If every thing done by defendants of which he complains should be undone, then he would be in as good a condition, as if nothing of which he could lawfully complain had been done by them. His complaint is of an unauthorized
The evidence does not then sustain the plaintiff’s right of action, as he has himself stated it, and, in strictness, no more need be said to justify the order for non-suit which was made on the circuit. But the third count does not explicitly allege-that the streets obstructed were public streets, — the parties, without looking to the pleadings, have in this Court argued the merits of the case, and it seems to be desired, that an opinion should be pronounced upon the case made by the evidence, as if every allegation that plaintiff might have made, had been made. We will, therefore, proceed.
If the streets are ordinary highways, and their obstruction has been authorized by law, no right remains for an individual to complain, by action at law, of peculiar damage done to him by an act detrimental to the public, which public authority has sanctioned, if an unauthorized obstruction of a public highway has been made, then whether the company is without charter, or has exceeded its chartered powers, whether the right to enter the town is not conferred by the charter, or a condition required before it shall occupy a street has not been complied with, — still there exists only the case which is alleged in the declaration, — a nuisance done of which an individual complains, — and the action cannot be sustained without proof of direct damage already sustained, contra-distinguished from contingent and probable loss apprehended : — and such is the case, wheresoever the fee of the highway may be.
3. If the streets by which plaintiff's squares are bounded are not highways, but merely unoccupied land owned by some other person, then, no matter in what body or person the title is vested, the plaintiff cannot have an action for damages done to that land by excavations or other acts, which would, if not justified, be trespasses against the owner: and his action for consequential damages to his property occasioned by such acts, must shew a wrong done, as well as natural, proximate loss, resulting there
4. The plaintiff, however, urges strongly his rights derived from the circumstances which have attended the establishment and growth of the Town of Columbia. The State purchased the laud, caused a town, with streets and. squares, to be laid out, sold the lots of the squares bounded by streets, and, in its legislation concerning the closing of some streets, has recognized the right of the owners of lots, bounded by streets to be closed, to object
Without questioning the deduction here made, let us see whether, under any form, which can be given to the interest thus imputed to a lot-owner in a street which is his boundary, the present action can be sustained.
The interest must be either a private right of way in the street, or some anomalous right of a private individual in a public highway, which is of necessity invaded by the obstruction of the highway.
5. If the plaintiff had a private right of way in Laurens street, then his'action on the case lies, if the obstruction of the street has been made without lawful authority. This requires an examination of the objections which he has made to the authority of the Rail Road Company, under its charter, to occupy the said street.
The first charter was granted to the company in 1846, (11 Stat. 397). A second charter was granted to it in 1848, by an “ Act to produce conformity in the charters granted to the Charlotte & South Carolina Rail Road Company by the States of North and South Carolina.” (11 Stat. 533). The latter Act, § 33, provides, that “ the charter heretofore granted to the Charlotte & South Carolina Rail Road Company, shall continue of force except in so far as it may be repugnant to the provisions of this Act.” Of course any increased authority given by the second Act, is additional to the authority conferred by the first; any unconditional enactment, by the second, of a provision subject to a condition by the first, removes the condition; and where a power to be exercised upon terms is granted to the company by both Acts, but the terms are made more advantageous by th second, the company may avail itself of the advantageous modification.
In the second place, it is objected, that the authority to occupy the streets of the town has not been given. The streets, it is said, have been already appropriated by the State. All lands which have been granted, have been appropriated, but every gsant and appropriation of land is subject to the right of the eminent domain. It is said that the State-house square might be invaded — the chief business street of the town be obstructed. With special exceptions which guard dwelling-houses, yards, gardens and grave-yards from invasion, (Act 1846, § 15,) and protect dwelling-houses, not in a town or village, from the annoyance of a depot nearer to them than one-fourth of a mile, (Act 1848, § 17), and prescribe the terms upon which public roads and water courses may be interfered with, (Act 1846, § 22, Act 1848, § 18), — the fullest discretion is given as to the route between the' termini, with power to “ enter upon all lands and tenements through which they may desire to conduct their Rail Road, and to lay out the same according to their pleasure;” — subject only to the provisions concerning the width of the track and the
If then the occupation of the street was authorized by law, there was no wrong in the Act itself, and none in the manner of doing it has been imputed: so that the plaintiff, upon the supposition of the street being his private way, shews only damage without wrong. He insists, however, that that is sufficient to sustain his action as a means of obtaining compensation for his loss, because the charter, in its provisions for compensation, does not include private rights of way and other incorporeal hereditaments.
6. The charter contemplates that any land, which the company is authorized to take, shall be taken without any preliminary proceeding, and without any proceeding shall, after a prescribed time, be presumed to have been granted to the company; but that within the prescribed time, the owner, if there should have been no purchase from him, may have an assessment of the value by commissioners. (1846, § 16. 17; 1848, § 19, 20). The words used to describe the subjects of assessment, are “ lands or right of way required by the said company.” Right of way here, seems from the context to mean a right to be acquired by the company of passing through another’s land, and not' an easement that some other person has in the lands of another, which the company desires to extinguish. Such an easement is not of that substantial character which ordinarily distinguishes land from some other subjects of properly, that fall under the larger denomination of hereditaments ; and the plaintiff, therefore, insists that having by the charter no mode .of compensation provided for his lost right of way, this action well lies for his recovery of adequate damages.
If the remedy provided by the charter had been applicable to
Assessment of compensation, and an action for damages, proceed upon wholly different principles
It must follow that whenever private property is lawfully taken by virtue of the eminent domain, the action for damages is excluded, even if no mode of obtaining compensation is provided. No express constitutional provision in this State demands compensation as a condition of the exercise of the eminent domain. When land is taken for a public use and vested in a private company, it is presumed to be required by public necessity, and is held in a public right. The grant of the power to take is not void, and if provision is not made for compensation, either the sacrifice of his property without compensation is exacted from the individual sufferer, or he must resort to the equitable obligation which arises from natural justice. If this obligation would devolve upon the State which grants the power .tQJtake, it might be appealed to by petition; but not by action. Whether it could be shifted to the grantee of the franchise, might depend upon an examination of the contract between the State and its grantee. Wherever it might rest, an asseition of the duty to make compensation would contradict the supposition of any liability for damages, which had proceeded from the exercise of the granted powers. Even if an action to enforce such duty against the grantee should arise from the omission of suitable provisions for compensation in the charter, such action would rest upon implied contract, and not upon tort as the present action does.
For a lawful invasion of his private right of way, the plaintiff could not then sustain this action, to recover either compensation or damages; the same observations would apply to a like action for an authorized invasion of any private interest in a street, not amounting to a right of way, which the plaintiff may be supposed to have had, so far as such interest could be looked upon as property and be separated from the right which the public has in a highway. -
7. It remains, lastly, to suppose, that every part of a street, in
The 22d section of the Act of 1846 enacts, that, whenever, in the construction of the rail road, it shall be necessary to cross or intersect an established road or way, it shall be the d uty of the Company so to conduct their rail road across such road or way, as not to impede the passage or transportation of persons or property along the same: — provided, however, that in order to prevent the frequent crossing of established roads or ways, or in case it may be necessary to occupy the same, it may be lawful for the Company to change the said roads at points they may deem it expedient to do so: provided, further, that previous to the making of any such change, the said Company shall make and prepare a road equally good with the portion of the road proposed to be substituted: provided, also, that the commissioners of the roads for the place where such alterations shall be desired, shall assent to such alterations and approve of the substitutes when completed.
The 18th section of the Act of 1848 enacts, that the said Company shall have the right, when necessary, to conduct their rail road across or along any public road or water course — provided that they shall not obstruct any public road without con
The defendants say, that neither of the clauses, which requires another road to be prepared in lieu of the one that may be occupied, creates a condition precedent to the right of occupying a road-bed, especially that the clause in the last Act does not,— but that either is only a directory specification of the manner in which, under certain circumstances, the power of the Company shall be exercised in accordance with the duty enjoyned upon them of preventing the obstruction of a highway: and that it is for the sovereign, which has granted the franchise, to enforce the performance of the duties required. Let it, however, be admitted, that whenever the sovereign might punish the Company by forfeiture or otherwise, for their neglect to prepare another road in lieu of the one they had obstructed, a lot-owner may have his action for the damages which such neglect has brought upon him. Our supposition of the lot owner’s rights demands the converse, that where the terms imposed by the sovereign have not been violated, the lot owner can have no action for the damages, which, without legal wrong, have been done to his interest.
Either of the sections above recited, taken in connexion with the general grants made by either charter, establishes the authority of the Company to occupy the bed of a public road, if they do not obstruct it or impede passage or transportation along it: and in view oi the general impracticability of occupation without obstruction, requires the obstruction to be obviated by the preparation of another road. Under either of the sections, an action against the Company brought by a plaintiff, whose particular loss or peculiar legal right might enable him to sustain an action, whilst it recognized the general authority to occupy, shouldiegularly aver the obstruction or impeding as the gravamen: and the Company, if it did not traverse the obstruction, would be required to shew in defence another road, equally as good; prepared. That other road, by the Act of 1846, must have been
It will be observed that the whole requirements from the Company in these sections are for the benefit of the public, and that if these be met by the Company, the contract with the sovereign is faithfully executed. The incidental right, which we have supposed a lot-owner to have in the street is not specially protected, and may be entirely destroyed, yet all that the Company is required to do have been done. Thus for instance, — The plaintiff’s squares lying east of Laurens-street, which he says has been obstructed, under the Act of 1846, a road might have been prepared, and approved by the commissioners of roads, west of Laurens-street, as a substitute for that street, and the excavation of the rail road have gone nearer to the plaintiff’s squares than it now does, and he have been cut off from entrance into his squares through Laurens-street, whilst the rail road ran between him and the new road or street: — so, under the Act of 1848, the same might have been done if another road “ equally as good and as convenient as may be” had been prepared west of the rail road. Under one Act, the judgment of the commissioners would probably be held conclusive of the sufficiency of the substitute: under the other, the tribunal which hears the defence of the Company against a charge of obstruction might be required to judge, whether the substitute is good and convenient as is required.
Now to apply these remarks to the case — Laurens-street, north of its intersection with Laurel-street, had never been used by the public, and was, from the nature of the ground, so unfit for
In no view then that has been suggested could this action have been maintained.
The motion to set aside the nonsuit is therefore dismissed.
Motion dismissed.
Harrison vs. Berkley, 1 Strob. 525.
Wyatt vs. Harrison, 3 B. & Ad. 871; Dodd vs. Holme, 1 Ad. & E. 493: Callender vs, Marsh, 1 Pick. 418.
6 Stat. 53.
American Law Mag. vol. 1, p. 52, art. 3, on consequential damages.