33 Mo. 128 | Mo. | 1862
delivered the opinion of the court.
The principal question which arises in this case is one of great difficulty, concerning which there is much diversity of opinion. It may be stated as follows :
Is the use of a street or other public highway for the purposes of a railroad an authorized and legitimate mode of enjoying the public easement ?
The charter of the North Missouri Railroad Company authorized it to build the road “ along or across any State or county road, or street, or wharves of any town or city; ” “ and said railroad shall not he so constructed as to prevent the public from using any road, street or highway along or across which it may pass.”
The company for a valuable consideration purchased from the city of St. Charles the right of way along a street of the city, and located its road there, passing in its course along in front of a lot of the plaintiff, and used the same in running cars, &c.; and the plaintiff, in his petition, avers that thereby the street was greatly obstructed, whereby the property of said plaintiff was greatly lessened in value, and by reason of which he has been and is put to great trouble and inconvenience in going from and returning to his house.
The case of Lackland v. the North Missouri Railroad Company (31 Mo. 181) was decided upon the ground that the city of St. Charles did not and could not authorize the entire conversion of the street, by permanent structures of various kinds, to such uses as virtually blocked it up for all the purposes of the street. .
This case is materially different. The ground of complaint here is, that by the construction and use of the railroad the street was greatly obstructed, and from the evidence it appears that the street is to some extent obstructed by its irse by the railroad company, but that the obstruction does not prevent the public from using the street, except upon that part of it
Upon deliberation, 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, and was authorized by the General Assembly in the charter of the defendant. The damage to the plaintiff’s property resulting from such obstruction was damnum absque injuria.
In other courts there is some conflict of decision upon this question. We refer to the cases cited in the briefs of counsel and to those cited in Pierce on American Railroad Law, and Redfield on Railways.
We think it best to remand this case, and therefore give our views upon another question which may arise again if the case should be tried again. When this case was tried, it appeared that the defendant, in consideration of the grant of the right of way through the street by the city of St. Charles, did certain work in the improvement of adjacent streets in filling, grading and paving them, and building a sewer; and the defendant offered, as diminution of any damages sustained by the property of the plaintiff, to prove that the work so done enhanced the value of plaintiff’s property. This evidence was rejected, as we think, improperly. It was a special benefit to the plaintiff, conferred by the defendant in payment for the very thing which caused damage to the plaintiff, and certainly was proper to be considered in reduction of that damage.
Reversed and remanded;
