113 Tenn. 53 | Tenn. | 1904
delivered the opinion of the Court.
Before considering the peculiar conditions averred by the complainants as entitling them to relief, it is proper to ascertain the exact rights of these several parties and the general rule of law to be applied in a case as is the present.
First, as to the franchise and contract rights of the defendant company. The record discloses that it was organized under the general incorporation acts of 1875 and certain acts amendatory thereof. Under its charter the company was authorized to build a commercial railroad around the city of Memphis, in this State, with certain lateral branches. One. of the provisions of the charter, following the terms of the statute which authorized the creation of this corporation, is “that the line of track of the road shall be so constructed as not to interfere with the convenient travel of the public along the highways, county roads, streets and alleys of cities, towns and villages, and so as to allow cars, wagons, carriages and other vehicles conveniently and safely to pass over and under the line of track, and so
The State, by this statutory provision, while according the right to a railroad corporation, with the consent of proper authorities, when necessary, or when convenience required or suggested it, to enter longitudinally or otherwise upon a public highway with its tracks, distinctly recognized that the primary purpose for which such a highway is constructed is its use by the public, traveling on foot or horseback, and in such vehicles as are popularly applied to business or pleasure. The Union Railway Company regarded this limitation as one which necessarily attached to its right to exist as a corporation, and embodied it literally in its charter.
Clothed with" chartered powers, this company entered into a contract with the city of Memphis by which it was permitted to construct a line of railroad “south-wardly along the ■ river front, and in and along Tennessee street . . . southwardly ... to the north line of Calhoun street at its intersection with Tennessee street.” The route projected and covered by this contract would carry this railroad, if finished according to its terms, along the front of the property of these two complainants.
The right of the legislature to authorize the building of a railroad across or lengthwise streets or alleys of an incorporated town or city is not an open one in this
While this is conceded, yet it does not follow that a municipality can agree to such an occupancy of one of its streets by a commercial railroad as to give it practically the exclusive use of, the streets, or, which is the same thing, destroy it as a highway, and thus divert it from the use for which it was primarily intended. The public is entitled to pass unhindered, by the usual modes of travel, along the streets of a city, and whatever seriously interferes with this right may be complained of and corrected, at the instance of the public, by proceedings properly instituted to that end. But the owner of abutting property, while as one of the public he shares in this general right, has a distinct interest which adheres to his property, and which he can call upon the courts to protect, and, if invaded, to redress. He has, in common with the public, the easement of a reasonable and unobstructed passage and
The legislative power over the streets of cities is very great, yet an examination of the cases will show that it is .not without limitation. Held in trust, as they are, they cannot be diverted so as to destroy either the public interest or private, rights which exist in them. Ell. on Roads & Streets, 18. Even in a State where the doctrine prevails that laying a track along the established grade of a street for the operation of cars thereon was not subjecting the street to a use different from that contemplated in the original grant (Lackland v. R. R. Co., 31 Mo., 183), yet it has been there held that the city could not, in the exercise of its power or municipal control, devote the streets, or a part of them, to a purpose inconsistent with the rights of the public or abutting property owners. Dubach v. R. R. Co., 89 Mo., 483; s. c., 29 A. & E. Ry. Cases, 609. Perhaps, however, the case which best emphasizes the views of that court in this question is that of Lockwood v. Wabash R. R. Co., 122 Mo., 86; s. c., 1 A. & E. R. Cases (N. S.), 16. The facts there were that the complainant, Lockwood, owned a valuable lot, covered with buildings, abutting on Collins'street, in St. Louis, between Carr and Franklin streets; that the access to Collins street was an important element in the value of his property; that this street was only 40 feet wide
Again the question was presented to the same court in Knapp, Stout & Co. v. Ry. Co., 126 Mo., 26, 28 S. W., 627. The established rule of Missouri, it was there conceded, was that under legislative sanction a railroad company might lay its tracks and operate its cars longitudinally or otherwise, on the streets of the city, and that for resulting incidental injury there could be no recovery; yet it was held, after a review of all the cases, very clear that “a municipal corporation has no power to grant to a railroad company such use of a street as will destroy its usefulness as a public thoroughfare, ... or unreasonably interfere with the right of an abutting property holder of access to and egress from his property.” To like effect are Ligare v. City of Chicago, 139 Ill., 59, 28 N. E., 934, 32 Am. St. Rep., 179; L. C. Ry. Co. v. City of Louisville, 8 Bush, 415; Commonwealth v. Interstate R. R. Co. (Ky.), 68 S. W., 628; Commonwealth v. Erie & N. E. R. R. Co., 27 Pa., 339, 67 Am. Dec., 471.
In all these cases the respective rights of the public and of the abutting property owners to the streets of the city or town are recognized, as well as the limitation in .the matter of municipal control, but, in addition, the power and duty of courts to interfere for the protection of these respective interests is also maintained. That
It will be seen from these authorities that, whether a commercial railroad is regarded as a new servitude imposed on a street, or whether the abutting property OAvner has an interest in the fee of the street, or only an easement of access to and egress from his property, with a right, in common with the public, of passage and re-passage oyer it, with legislative sanction it may lay doAvn its tracks and run its cars thereon. While this, hoAvever, is true, the same authorities are clear that in doing this it cannot monopolize a street .so> as to destroy its usefulness as a public highway, or Avork irreparable injury to property OAvners. This last proposition, Ave, think, becomes more controlling where the railway enters with its charter right fettered by a restrictive condition, such as is found in the present case.
These holdings would seem to be in harmony with sound public policy, and certainly they come from courts of the highest respectability. Under their au
The leading case in this State upon the right of a railroad, under its charter, to enter upon the streets of the city, is that of T. & A. Ry. Co. v. Adams, supra. In that case there was not raised the question as to whether the right to go upon the street involved the right to destroy it as a highway,, or the other question as to the right of the abutter to call upon a court of equity for protection, in view of the threatened destruction of his property interest. The real question determined was that the words “from a town or city,” used in the railroad charter, gave the company the right-to enter such town or city, and lay its tracks upon a street of the city. To exercise the right of entry and occupancy was- dependent, it was held, upon the terms of its charter; for “nothing could be claimed that was not expressly given it by the act of incorporation.”
Railroad v. Bingham, supra, was a suit brought by
The case, however, which is regarded by defendant as conclusive against complainants, and which no doubt to some extent controlled the chancellor in the-dismissal of these bills, is that of Montgomery Co. v. Tennessee Central Railroad, decided in a manuscript opinion at the December term, 1903, of this court. The case was disposed of. on demurrer. The facts set out in the bill, briefly stated, were that Montgomery county was the owner of a lot abutting on Spring street in the city of Clarksville, between Commerce and Main streets, and that under a contract with the city of Clarksville the Tennessee Central Railroad Company and its contractors had entered upon Spring street with a view of laying a track thereon. There were general averments in 'the bill that complainants property would be rendered valueless without the use of that street; that by the direction of the railroad an excavation was being made covering the front of complainants property; but it was not averred that this excavation would destroy the easement of access to the lot of the complainant, or that the railway tracks, when laid, would occupy the
Upon considering' the case it was conceived by this court that there was nothing in the bill from which it could be fairly implied that Spring street was to be destroyed as a public highway, or that there was to be inflicted upon the complainant by the railroad company damages which could not be well compensated in a civil action. So that, whatever may. have been said in disposing of that case in the way of general observation, its authority cannot be invoked, so as to control another so distinct in character and in fact as the present.
After an examination of our reports, we are satisfied there is nothing in any one of them which will preclude a court of equity from giving relief to an abutting property owner who presents a proper case for interference by injunction. But such a case must be clearly made out to call this extraordinary power of the court into activity. For, as a matter of course, a restriction in a charter as to the public streets, such as is in that of the defendant company, implies the right of entry upon public' highways with the consent of the proper authorities, and dhe right of user when once made. As is said by Judge Black in the Erie Case, supra: “If the defendants have the right to make the road oh the street,
All this is conceded, but what we hold is that a public street, either with or without the consent of municipal authorities, cannot be converted into a mere roadbed for railroad tracks, over which trains will be constantly operated, to the destruction of the public use, and of the business and property interest of those abutting thereon. Such an appropriation is a complete subversion of the purpose for which the street was opened, and in a case where no damages properly recoverable by these property holders would be commensurate with the injury sustained a court of equity on reason and authority should intervene for their protection.
We come now to the consideration of the facts presented by the voluminous record in these two causes. Many depositions have been taken, and in these are found many diverse views, colored more or less by the
The record further shows that the product of its brew is largely sold to customers in the city of Memphis, delivery to whom can only be made in heavy truck wagons, and that promptitude in making such delivery is essential to the successful conduct of the business of the company, which now aggregates from six hundred to seven hundred thousand dollars annually.
With regard to the property of complainants John R. Pepper and associates, it appears that it is also' located on the east side of Tennessee street at its intersection with Butler street, and has on it valuable improvements. These parties are very extensively engaged in the business of refining sugar and molasses, and in carrying on their enterprise drays and many large wagons
Tennessee street is 41 feet and 6 inches wide between curb lines, and there were at the time of the filing of the present bills and for many years prior thereto, two parallel railroad tracks, laid longitudinally thereon. The most western of these tracks is spoken of in the record as an industrial track, laid down by the railroads at the instance of many manufacturing establishments on that street for their convenience in receiving and shipping freights. On this track at all times there are,a greater or smaller number of cars, which are being loaded or unloaded, in front of one or more of these various establishments, including those of the complainants. The eastern track is controlled by the Illinois Central Railroad, and is located about the center of the street. Over this track, and during every hour of the day, trains are passing and repassing. The record makes it clear that the delays and dangers incident to the use of the street by the railroads has already seriously interfered with it as a thoroughfare, and it is evident that complainants already suffer from existing conditions much in
Even if it be true that Butler street was sufficient, in addition to the general traffic now imposed upon it, to bear the traffic of complainants discharged and received by new openings made through their several business houses to it, we know of no principle which would require them at heavy expense to adjust their properties so as to avail themselves of this street, at the instance of and for the accommodation of the defendant company. Bordering both streets as they do, they .cannot be compelled to surrender the one and depend upon the other. But the fact is that Butler street has a width between curb lines of only 19 feet, and is already taxed to its utmost capacity. That it would fail to furnish facilities equal to those which complainants have long enjoyed on Tennessee street is manifest. At any rate, we think, as this third track cannot be laid on this street without violating the restriction in the charter of the Union Railroad Company, and as complainants’ valuable properties and business interests would be exposed to serious peril thereby, they can well invoke the protection of a court of equity.
The decree of the chancellor dismissing these bills is therefore reversed, and the injunction prayed for by the complainants is awarded, and made perpetual.