Slaughter v. Meridian Light & Railway Co.

48 So. 6 | Miss. | 1909

Lead Opinion

Mayes, J.,

delivered the first opinion of the court, the oneafterwards withdrawn.

During the year 1906 the Meridian Light & Railway Company obtained from the municipal authorities of the city of Meridian the right to construct and operate a street railway line on certain streets in tho city of Meridian, one of the streets being Twelfth avenue. This avenue is only forty feet wide from property line to property line. The sidewalk on one side is-eight feet wide, and the sidewalk on the other side is nine feet wide, leaving a space for the street proper of twenty-three feet, down the center of which the railway company has placed its line. When a car is in operation it occupies a space of eight feet in the center of the street, leaving a space of six feet and two inches between the outer edge of the car and the curb. The standard-guage wagon is about six feet from outer edge to outer edge of hub, according to the testimony, leaving only about two inches of space between the cár and ’wagon when passing on the street. It is true that it is shown by the testimony that the city ordinances permit only an eight foot sidewalk on avenues of this character and width; but this cannot alter the principle in this case. Mrs. Slaughter owns an entire block abutting this street, except about seventy-two feet owned by another party; Mrs. Slaughter’s frontage being about two hundred seventeen feet on .this avenue. On the 12th day of July, 1906, Mrs. Slaughter filed a bill in the chancery court seeking to restrain the railway company from operating its road on Twelfth avenue until they had compensated her for the damage done her property by the operation of the street railway, and, further, for damage claimed because of certain excavations made by the company in placing their line on the avenue.

The property in question had formerly belonged to the mother of Mrs. Slaughter; but, the mother having been killed by a cyclone some time in March, 1906, Mrs. Slaughter had inherited the property and was sole owner. The record shows that there were various protests entered against the placing of this railway on the avenue by the different owners of the property before the track was- placed in the street, so that no question •of waiver or estoppel is presented in any way. The narrowness of the street makes it difficult and almost impossible for a vehicle to be in the street at the same time with the car, and the street is rendered much less available for ordinary traffic since the •occupation of the street by the railroad company. Of this there can be no doubt. The testimony fails to show that Mrs. Slaughter was damaged by any excavations made by the railroad company, and the chancellor so found as a fact, and we think correctly. If Mrs. Slaughter is damaged by any excavations, such excavations as produced the damage were made by the city, and not the railway company. But the testimony shows that by the maintenance and operation of this railway the property of Mrs. Slaughter is depreciated in value in a sum variously estimated at from $500 to $1,250. On the hearing the chancellor adjudged that Mrs. Slaughter was not entitled to recover, and dismissed the bill, from which judgment an appeal is prosecuted to this court.

The sole question presented by this record is whether or not a street railway and its maintenance and operation may be said to be one of the legitimate uses of a street, in contemplation of the parties at the time of the original taking, so as not to impose an additional burden on the street when afterwards placed there, .and precluding abutting property owners from claiming additional damage ? If such has been tbe rule heretofore, does not sec. 17 of tbe Constitution of 1890 change tbe rule? Tbe question in this case is presented to this court for decision for tbe first time. We have before us tbe bolding of all tbe courts on this subject, and in addition to this we also have what many of tbe courts did not have at tbe date they were called on to decide this question; that is, we have a fully developed system of street railways, and tbe relation of tbe street railway to tbe public and its effect on the value of property adjacent to it can now be seen in all its aspects. It 'is undoubtedly true that tbe great weight of' earlier authority is in favor of tbe bolding that tbe abutting property owner is not entitled to additional compensation when the street is subjected to street railway uses after tbe original taking, and that such a use does not. impose an additional servitude on a street; but it is not to be forgotten that many of tbe decisions so bolding were made at a time when street railways were not in common use, and under Constitutions that provided compensation only for tbe taking of property, and not for consequential damage, as does our Constitution.

In order to properly understand this question, it will be necessary to review to a limited extent tbe history of street railways and tbe decisions bearing upon this subject. Tbe first street railway of which we have any history was constructed by one John Stephenson in 1831 in tbe city of New York. This venture proved a failure from a commercial standpoint, and in a short while was abandoned. Tbe enterprise was again resumed in 1845, and from this date it may be said that this system of street traffic became firmly established. Tbe first street railway was operated in Boston in 1856, in Philadelphia in 1857, and in New Orleans in 1861. Tbe first electric street railway was constructed in Cleveland, Ohio, in 1884. It is thus seen that tbe street railway as now in use in nearly all tbe cities is a thing of modern origin. Tbe common law cannot be resorted to, to ascertain whether or not such uses of tbe street can be said to have been within tbe contemplation of tbe parties at tbe time of tbe taking, because there is no common law on the subject. Each state must form its own jurisprudence on this subject, and the question must be determined under its own Constitution and laws.

It was a known fact that under the Constitution of 1869, providing for compensation to the owner of property for public use, the property owner often suffered damage as a consequence of the taking for which there could be no' recovery. When the constitutional convention met in 1890 a more liberal and just rule was established, in that by sec. 17 it was provided that the property owner should be compensated for both the taking and for damaging. Under this section of the Constitution individual rights are guarded completely, and it is now impossible for an individual to suffer damage to his property rights through public uses without full compensation. No narrow construction should ever be given to this clause of the Constitution, adopted, as it was, to more fully secure individual right.

The first construction of this section of the Constitution was in the case of Vicksburg v. Herman, 72 Miss. 211, 16 South. 434. Herman owned certain lots in the city of Vicksburg fronting on Belmont and Monroe streets. These streets had originally been dedicated to public use and a grade established thereon. Subsequently a new grade was established by the city; and in so doing the property of Herman was damaged as a consequence. The streets in question had originally been used by the public, and the change in grade was merely for the purpose of improving the street and making it more available for public uses. The ■court, speaking through Judge Woods, said: “Under our former Constitutions, which provided only for due compensation to the ■owner for taking private property for public use, it had been long held that, to entitle the private owner to compensation for the taking of his property for public use, there must be an invasion of the property, a trespass upon 'it, and an appropriation ■of it to public use. There must have been, formerly, that which .amounted to a deprivation of the owner of his property; and merely consequential injuries, resulting from the loss or impairment of some rights incident to the use or enjoyment, there being no invasion of the property itselfj were not covered by the constitutional prohibition. Such was the law as understood and applied before the incorporation of the new words we have referred to. The words are without limitation or qualification. They embrace within their inhibition all those attempting to convert private property to public use, artificial as well as natural persons, municipal and other corporations alike; and they cover all damages of whatever character. * * * The citizen must now be held, under this new provision of our fundamental law, to be entitled to due compensation for, not the taking only of his property for public use, but for all damages to his property that may result from works for public use. He is now secured in his property, and his use and enjoyment of his property. The burdens formerly borne by the citizen, resulting from damage done his property by a diminution or destruction of his right to use and enjoy his own, were designed by this new constitutional rule to be placed upon those by whose action the diminution or destruction was wrought.”

In the case of Warren County v. Rand, 88 Miss. 395, 40 South. 481, where tire suit was by Rand for damage done his property as a mere consequence of a change of grade in the highway already dedicated to public use, the court held the county liable for the consequential injury. To the same effect was the case of Williams v. City of Jackson (Miss.) 46 South. 551. In the case of King v. Railway Co., 88 Miss. 456, 42 South. 204, 6 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749; Campbell, Special Judge, delivering the opinion of the court said that: “Const. 1890, § 17, makes the right of the owner of private property superior to that of the public, reversing the former rule that the individual might be made to suffer loss for the public. He may still be compelled to part with his property for public use, but only on full payment for it, or any right in relation to it. Before the Constitution of 1890 it was held that a municipality might cut down a street to the injury of abutting owners without any liability to them (White v. Yazoo City, 27 Miss. 357), and a river might be turned away from a plantation fronting on it without compensating the owner (Homochitto River Com’rs v. Withers, 29 Miss. 21, 64 Am. Dec. 126), and damage could be done to the property from constructing a levee without any right of the owner to be indemnified (Richardson v. Board of Levee Com’rs, 68 Miss. 539, 9 South. 351). This was because of the rule that the right of the public was superior to that of the individual. The decisions of this court since the Oonstitu-. tion of 1890 give full effect to the just rule established by its seventeenth section, by maintaining the right of the owner to be fully compensated for any loss of value sustained from any physical injury to his property or' disturbance of any right in relation to it,whereby its market value is diminished.”

The object in citing these cases is to show that under this section of the Constitution our court has held that although there has been a prior taking of private property for street uses, and the change made in the-street or highway is only for the purpose of maldng the use of the street as such more efficient and for the greater convenience of the public, and for only the ordinary purposes, yet any new thing done to the street, producing damage to the abutter as a consequence, entitles him to additional compensation, thus giving a broad construction to the Constitution and precluding the idea of damage without responsibility therefor. This holding of the court is in the face of many authors treating the subject of eminent domain. Thus, in Lewis on Eminent Domain, § 92, it is held that there can be no recovery for a mere change in the grade of a street or highway. To the same effect is 2 Abbott on Municipal Corporations, § 810, and almost all authorities writing on this subject. We cite these authorities to show that our own court is not in line with this holding, but under sec. 17 of the Constitution has adopted a different rule.

Having shown by our authorities that there can be no change in a street or highway, even where that change is for ordinary purposes of street use and for greater convenience of the public in its use, by raising or lowering the grade thereof, without liability to the abutting owner for consequential damage, the next question we have to consider is: Where there has been no change in the grade in any way, but the street is merely permitted to be used by a street railway, does such use impose an additional burden on the street in such way as to entitle an abutting owner to additional compensation ? Can such use of the street be said to be a legitimate use, and in contemplation of the parties at the time of the original taking ? At most, the building of a street car line on any street is but a remote possibility, depending upon many things wdiich may never happen, and such a remote responsibility that a landowner could hardly ask that a sum additional to the actual value of the land should be allowed him at the time of the taking. That hacks, wagons, buggies, foot passengers, and all such will make use of the street is a certainty; hence these things, in the very nature of it, are contemplated uses of the street. But the remote possibility that any individual or corporation will at any time deem it financially advisable to construct and operate a street railway on the street is the merest possibility, too remote to be considered as an element of damage when the property is taken. On this subject we will first consider what our own court has had to say.

In the case of Stowers v. Telegraph Company, 68 Miss. 559, 9 South. 356, 12 L. R. A. 864, 24 Am. St. Rep. 290, it was held that a municipal corporation could not authorize a telegraph company to construct its' line along a public street without making compensation to the owner, holding that it was an additional servitude. In this case,- and in the case of Theobold v. L. N. O. & T. Ry., 66 Miss. 279, 6 South. 230, 4 L. R. A. 735, 14 Am. St. Rep. 564, it was also held that this was true, regardless of whether or not the fee was in the public or the abutting owner. In this case of Telephone Co. v. Cassedy, 78 Miss. 666, 29 South. 762, the same was held in regard to telephone companies. If it be held that the operation of a telephone company in a street is an additional burden, it is difficult to see on what principle a street railway can escape. The construction of the telephone line is much the same as that of the modern street railway operated by electricity. The operation of the telephone is less dangerous to the public. It affords fewer obstacles to the use of the street by others. It is a matter of just as much or more public convenience. It takes from the street many messengers, and to that extent, at least, relieves the congestion of traffic. It uses no special track in the street, excluding therefrom all others while moving on same. In short, the interruption to the ordinary use of the street by others is far less interferred with by the telephone than the street railway. In the case of Theobold v. L. N. O. & T. Ry., 66 Miss. 279, 6 South. 230, 4 L. R. A. 735, 14 Am. St. Rep. 564, this court held that a steam railway was an additional burden on the street, entitling the abutter to additional compensation. In delivering the opinion of the court Judge Arnold said: “A street is a public thoroughfare or highway, established for the accomodation of the public generally, in passing from place to place, and for such other incidental uses as are ordinarily made of public streets, such as laying drains, sewers, gas and water pipes, and the like. Public streets are for the use and benefit of all, and no one has any exclusive rights and privileges therein. They are free to all upon like conditions, and subject to use by any means of locomotion which is not destructive of the common uses and ordinary methods of travel. * * * If the street is needed for the purposes of a railroad, or for any other purpose inconsistent with the ordinary uses of a public street, the rights and interests of the abutting owner must bo obtained, with his consent, or by the exercise of the right of eminent domain, as in other cases of taking private property for public use. * * * It is.apparent that there is difference between the ordinary horse railway and the ordinary steam railway, with reference to their use of a public street; but whether the difference is only one of degree we are not called upon to , decide in this case.”

The decision above quoted was rendered under the Constitution of 1869, and the court intimated very strongly that there was only a difference in degree between steam and street railways, and no difference in principle. But it is said that this court held, in the case of Rosenbaum v. Meridian Light & Railway Co., 38 South. 321, that the operation of a street railway did not impose an additional burden on the street. We do-not so interpret the decision. That case was decided purely on a qiiestion of fact, not involving the principle here contended for. Ths was expressly stated in the opinion. The case of Hazlehurst v. Mayes, 84 Miss. 7, 36 South. 33, 64 L. R. A. 805, has no application to this case. The Mayes ease simply held that where the city owned its own electric plant, constructed and operated for the purpose of furnishing light to the municipality, the use of the streets for the purpose of maintaining and operating this plant was one of the ordinary uses in contemplation of the parties at the tipie of the original taking. The case of Gulf Coast Co. v. Bowers, 80 Miss. 570, 32 South. 113, merely held that, as the city had the right to light the streets, it could make a contract with another to furnish the lights, and license the use of the streets for that purpose, without rendering that other party liable to abutting property owners. But there is a great difference between a plant owned and operated by the town for the purpose of lighting same and a street railway owned and operated by an individual or corporation appropriating certain portions of the street to its exclusive use while in operation and conducting the enterprise for purely personal profit. In all ages streets have been lighted. Such usage is necessary in order to make them safe and complete their use to the public. It may well be said the necessity for lighting streets is a matter of such common knowledge that it must have been within the contemplation of the parties at the time of the taking. None of this can be said of the remote possibility of a car line being established on the street. It is recognized by Cooley and others that, when property is condemned for railway purposes proper, greater damage is allowable than when the property is merely to be used for ordinary street purposes. This being the case, and the obstruction afforded to ordinary uses of the street by a street railway, varying from that of the steam road only in degree, the conclusion seems irresistible that any car line using a fixed right of way on a street, obtaining a use of the street impossible to be shared in common with others, excluding others from the use of the way occupied by it while in operation, imposes an additional burden on the street.

All holdings contrary to this came about through a wrong viev of the real classification of the street car. It has been classified with hacks, carriages, wagons, buggies, drays, etc., usually occupying streets. The public use which they subserved and the public necessity for their operation has led to this confusion, and the rights of private individuals have been lost sight of. While a street car is a public utility, it is not to be forgotten that it is operated purely for private gain in most instances; few street railways would be maintained for' the public good alone, if private gain was not the controlling consideration. They are not like other vehicles on the street. They have fixed lines over which to run, and when so doing they can turn neither to the right nor to the left. All other transportation in or use of the street must yield to the street car. Its track is appropriated exclusively while in operation, and is not subject to a common use. It must obtain a special franchise before it can occupy a street or highway. That is not the case with any other vehicle using the street. It is readily seen, therefore, that it affords greater obstruction to the common use of the street than any other vehicle. Its exclusive uses of the street- and its impediment to a .common use of same is well known. Unless the street is very broad, property is more valuable and brings higher prices on the market near to, but not fronting on, a street railway line. All this shows that a street railway is looked upon as a damage to property fronting thereon, varying'in degree according to its proximity. No other traffic in the street produces this effect on property; hence the street railway cannot be regarded as the same as, or classified with, the use of the street by other ordinary vehicles. In broad streets the damage may be slight. In narrow streets it is greater, but the principle is not different.

In Cooley on Constitutional Limitations (7th Ed.) p. 802, it is stated in the text that a street railway is a legitimate use of the street. As authority for this text, dropping into the common error, several earlier cases are cited, decided at a time when street railways were not common, and little understood. We differ from this learned author with much reluctance, but the text was written in 1868, when few cities had any street railway system, and when the decisions upon this subject were meager. But this same authority holds on page 795 that, if the street be a narrow street, the abutter would be entitled to additional compensation. It is difficult for us to understand how it can be held that the use of the street for railway purposes is a legitimate use, one of the ordinary purposes for which it was intended at the time of the taLing, and for which the owner has been fully compensated, and yet hold that, because it happens to be a narrow street, the owner having already been fully compensated for all legitimate uses, he can recover additional damages because the street is narrow. It does not seem to us that such reasoning is sound.

In Lewis on Eminent Domain, vol. 1, p. 268, the author says a “review of cases shows how conflicting and irreconcilable are the authorities. The weight of authority is that a street passenger railroad, laid on the surface or established grade of a street, is a legitimate street use, while all other railroads are not. But what rational basis is there for a distinction between freight and passenger traffic? ... To say that one railroad is a legitimate street use because it carries only passengers, and that another is not a legitimate use because it carries both freight and passengers, is purely arbitrary. It is a distinction which cannot be founded upon the nature and' uses of streets. ... It seems to the writer that there is no rational basis for a distinction between surface roads, and that either all should be admitted as legitimate, or all excluded as illegitimate, street uses. As between these alternatives the'latter should be chosen. A railroad involves a fixed and permanent structure in the street, which is more or less of an obstruction to ordinary travel. If one track is a legitimate use, there seems to be no escape from the consequence that any number of tracks is legitimate. It rests simply with the proper public authorities to determine how many tracks will best subserve the public interests; and so a street might be filled with railroad tracks, and-all ordinary traffic excluded therefrom, and yet be held to be devoted to legitimate and proper street uses, and this is a palpable absurdity. For these reasons we think that railroads are not legitimate street uses. This conclusion does not prevent the use of streets by railroads, since property devoted to one public use may be taken for another public use, or a joint use permitted. It simply prevents such use being madewithout just compensation to abutting property owners.” Again, the same author says, on page 282 (§ 117a) : “Some of the states which hold .that railroads of all kinds are legitimate street uses have sought to avoid the harsh consequences of this doctrine by introducing the qualification that for any unreasonable or excessive use of the street the abutter may have compensation.” The same author says, on page 286: “These cases, as it seems to the writer, are a virtual confession of error in holding railroads to be a legitimate street use. They illustrate, however, the tendency of courts to work out in one way or another substantial justice to the property owner.”

Fn Keasby on Electric Wires, p. 177, after a review of all the authorities, showing that a large majority of the cases hold that a street railway imposes no additional servitude on the street, the author says: “It is no doubt true that all railroads do affect in some degree the use of a street. They do claim some exclusive use. They divide the street into two parts, and, if it narrow, they make it impossible to leave a wagon standing at the curbstone. The electric road may have some additional elements of danger and obstruction, and it may well be that the solution of tlie difficulty is to be found in the suggestion that a person who suffers actual damage shall be entitled to compensation for the injury he sustains.”

The authorities are unanimous to the effect that the motive power used is not determinative. The principle is the same in its application, whether the motive power be electricity, cable, or .horse power. Mr. Elliott in his work on Roads and Streets (§ 700), malees the question of additional servitude depend upon the width of the street, a reasoning which we have heretofore seen is not to be sustained. From the authorities already cited it will be seen that the courts and the law Writers have been dissatisfied with the holding that street railways imposed no additional servitude. It has been their endeavor to get away from this line of authority, realizing the error of it. While the authorities are unanimous on the proposition that steam railways impose additional servitude, it has not always been so held. In the case of Morris & Essex Railway Company v. City of Newark, 10 N. J. Eq. 352, decided in 1855, before experience and mature thought had taught better, it was held that a steam railway might lawfully occupy a street without imposing any additional burden thereon. The same thing was held in the early history of railroads by other states. All such decisions have long since been departed from and are now looked upon as mere curiosities in the law. It is worthy of note that, in order to obviate the rule laid down by many courts that no additional servitude is imposed by the use of the street for street railway purposes, many states have passed statutes making them liable. See note in 2 Am. & Eng. Annotated Cases, p. 537.

In the case of Detroit Railway Co. v. Mills, 85 Mich. 634, 48 N. W. 1007, the court consisted of five judges, three of whom held that an additional servitude was imposed upon a street by its use for street railway purposes, and in this case McGrath, J., says:

“The case hinges upon the question as to whether or not the construction and operation of a street railway in a street, and, as incident thereto, the placing of poles therein upon which are to be stretched electric wires, is a new servitude; and I am clearly of the opinion that a street railway, whether operated by animal power, electricity, or steam, is an additional burden; and it seems to me that the exemption of any street, whether narrow or not, is a practical concession to this view. If it is or can be an added servitude in any street, however narrow, it must be in any street, however wide; the only difference being one of degree. If the width of the street is to determine, just what width shall determine the question ? If the right exists to grant a franchise in one street and the exercise of that right concludes the abutting owner, why not in any street ? Any fixed right of way in a street is a burden upon that street. Any use of a street, a like use of which is not common to all,- is a new servitude. Any use of a street which narrows the street, or which interferes with the use of any part of the street by the public, or confines the public to a use of but a part of the street, is an added burden. Any use of a street which increases the danger of a common use of that street is an additional servitude. Any use of a street which interferes with its use by the public is a use affecting the abutting owners. The value of property upon a street is materially affected by its width, by the portion thereof devoted to public travel, by the facilities afforded for ingress and egress, and by anything and everything that interferes with a common use of the street or the abutting owner’s access to it, or which obstructs his view or interferes with the utility or beauty of his premises. Tie is entitled to every use which is not inconsistent with the public use, and to every use which is not inconsistent with such a use as is common to all. A street railway lays-its track upon the surface and in the center of a street. It appropriates just so much of the street to its use, and to a use which is practically exclusive. It divides a wide street into two narrow streets. The portion of the street occupied by its tracks can only be used with increased danger. It cannot be crossed without danger, nor without the exercise of great care. Wheels and axles of vehicles . are being constantly broken by attempting to drive on its way, or along or across its way, and the only answer which the street railway or the municipality makes to the injured party is, ‘Keep off of the track.’ . . .' Cars moving along these tracks have practically the right of way. They turn out for no one’s convenience, and are practically moving obstructions in the street, discommoding other vehicles, and adding materially to the hazard of travel. . . . Because of the existence of these tracks, roadways are being constantly widened at the expense of sidewalks and ornamental grounds and ornamentation. If the local Legislature has the right to permit the laying of a single track, why not of two tracks, or of four tracks. . . . It may be conceded that street car service is a public convenience ; but the necessities of the public must be supplied at public expense. The Legislature has no right to say that property of the individual may be taken or injuriously affected for the public good without compensation. Public convenience is not to be subserved at the expense or disadvantage of the private citizen. . . . The same cases which hold that a horse railway is a proper use of a street declare that a steam railway is not, arid that the occupation of a street by a steam railway is a new servitude; yet the use by the steam railroad is within the same limits as that of the horse railroad. The burden may not be as great in the one case as in the other; but there is no difference in the principle. . . .

‘.‘It is urged that this use of streets ‘must be supposed to have been contemplated.’ Is it possible that a use of a street which is not common to all streets, and which depends upon the desire of a street car company or the will of a common council, must be supposed to have been contemplated % Can this special use, depending upon the question of profit to its promoters, be deemed to be one of the ordinary purposes for which property for a street was taken ? Can it be that the use of a street, as a mere outlet for a traffic which in the absence of that use would be distributed over several streets, can be said to be a use contemplated at the opening of that street ? It is true that all the traffic of a given territory embracing a number of streets may be directed upon a given street, and a system of transportation adopted which interferes with the other and ordinary inodes of travel upon that street, and the other streets relieved at the expense of that street, and yet this system of transportation is not a new burden. In a street opening procedure, the measure of damages is the value of the property taken and the physical injury to what is left; but in the condemnation of lands for railroad purposes another element of damages is considered, viz., the consequential injury to the remaining estate growing out of the mode and nature of the use. The very existence of these different rules clearly indicates that, in the street opening proceedings, no possible consequential injury was contemplated. . . . This is not a question of whether or not the public shall shall have street railways or rapid transit; but it is one as to whether the owners of property shall be divested of its beneficial use or enjoyment without compensation, because a private corporation is attracted by the prospective revenue there is in the enterprise, and, upon the plea that 'it will be a great public convenience, has obtained a franchise to appropriate a portion of the street to its use. . . . The public need and are benefited by steam railroads. The progress of civilization would be checked, and the world at a standstill, without them; but they have never been allowed to acquire private property, except by purchase or condemnation. But here is an electric railway company permitted to take private property without consent or condemnation, and the landowner is powerless to prevent it; and it is doubtful, from the opinions of some of the learned judges who have upheld such proceedings, if he can even seek relief, after the road is laid and operating, in a court of law, for the actual damages he has suffered. In my opinion, no legislative grant, or municipal authority under such grant, can thus deprive an individual of his interest in land, no matter how urgent the wants of the public. The need of the public cuts no figure when the question of compensation to the landowner for the taking of his property is mooted. . . . The individual, in a republican form of government, is the one to be protected and guarded, and in his protection lies the security of liberty to the whole people. If the need of public demands this kind of a railway for rapid transit, then the public can afford to pay for the privilege of destroying-the property of the individual citizen. In no other case that I know of has the home of the individual been permitted by the law to be damaged without recompense, that the public might reap a benefit. If the need of the public is such that it must have this particular method of transit, that need will furnish corporations with the means to repay every private citizen for the loss and damage that his property must suffer to accommodate such public need.”

The error into which the courts have fallen, in our judgment, is the error of holding that a street railway was a legitimate use of the street. Such means of street travel differ from all other ordinary uses of the street. There can be no difference between the damage done by a steam railway and a street railway, save in the degree of the damage. We have no hesitancy in holding, that a street railway is an additional servitude on the street, entitling an abutting owner to additional compensation, and it can make no difference in principle whether the street be broad or narrow, except as to the extent of the damage. In the one-case it may be great, and in the other so small as not to be material ; but the principle is the same. This additional servitude is imposed by each line or switch that may be laid in the street, and is a new, additional servitude, just as the number of tracks are multiplied. We do not intimate what the amount of recovery should be. in this case, but leave this question open.

Reversed and remanded.

After the delivery of the foregoing opinion an elaborate suggestion of error was presented by counsel, for appellee. Pending the suggestion of error the cause was remanded for argument.

Argued orally on suggestion of error by J". Q. Hall, for appellant, and O. H. Alexander and W. E. Baslcin, for appellee. Whitjgteld, C. J.,

delivered the final and controlling opinion of the court, in response to the suggestion of error.

Twelfth Avenue, the one involved in this litigation, as shown in the original opinion, is only forty feet wide from property line to property line. The sidewalk on one side is eight feet wide, and the sidewalk on the other side is nine feet wide, leaving a space for the street proper of only twenty-three feet, down the center of which the railroad company laid its line. The electric car occupies a space of eight feet in the center of the street, leaving a space of about six feet two inches between the body of the car and the curb. A standard guage wagon is shown by the evidence to1 be about six feet from the outer-edge of the hubs to the •outer-edge of the hubs1, and thus there is left a space of about only two inches between the car and a wagon when passing each •other on the street. Mrs. Slaughter owns an entire block abutting on this street, except about seventy-two feet owned by a abutting party; Mrs. Slaughter’s frontage being about two hundred seventeen feet on this avenue. On the 12th of July, 1906, Mrs. Slaughter filed a bill in the chancery court, seeking to restrain the railway company from operating its road on Twelfth Avenue until the company had compensated her for the damage done her property by the street railway, and further, for damage claimed for certain excavations alleged to have been made by the company. This last claim for damages may be laid out of view since, according to the testimony, it is not shown that these excavations had actually been made by the electric railway company.

This simple statement, showing there are but two inches of space between the body of the car and the hub of an ordinary standard wagon, demonstrates beyond any cavil the fact that the laying of the street railway on this avenue in this manner practically destroys the use of the avenue for all purposes except this street car use, and that consequently the construction of this street railway in this avenue, under the case made by the facts recited above, is a nusiance, seriously interfering with the ingress to and egress from the property of the appellant, inflicting upon her, therefore, special damages, for which she has, under the general principles of the law, a right to recover. The chancellor was in error in holding, on these facts, that the appellant was not entitled to recover these special damages. “Bes ipsa loquiturThe situation speaks for itself. The distinction to be observed here is between the use of a street and the abuse of it. The construction of this electric street railway in this avenue, leaving but two inchep of space, destroying in effect all other use of the street than that use the street railway could have, was a grossly improper construction of the said railway. If it should be conceded that the laying of an electric street railway, generally and ordinarily, in the streets of a city, is not the imposition of a new servitude, and is a legitimate use of a street, it does not at all follow from this concession that such a railway may be laid in a street where the consequence is the destruction of all other use of the street, except that by said street railway. ■ The width or narrowness of the street is a very important consideration in determining, in this view, whether an abutter suffers special injury from the construction of such railway; but in the view as to whether, generally and ordinarily, the laying of an electric street railway in the street of a city is a new servitude, the width and narrowness of any street is wholly immaterial. However legitimate a use of the streets of 'a city by an electric railway may ordinarily be and however clear it may be that such laying of an electric street railway in the streets'of a city ordinarily does not impose any new servitude, is just as clear that such electric street railway .cannot be laid in a street where the result is the absolute destruction of the use of said street by all others than said street railway. In other words, it is plainly, in such case, an abuse of a legitimate use, which, if inflicting special damages, must give a right to-recover such damages on the general principles of the law.

We do not think, upon mature reflection, 'that the question whether the laying of an electric street railway in the streets of a city, ordinarily and as they are generally laid, is the imposition of a new servitude, is presented for decision hy this record. The only question properly and necessarily presented for decision in this case is simply whether this appellant has sustained such special damages by serious interference with ingress and -sgress to and from her lot, by the proper construction of this railway as entitled her to recover, even if it were granted that the laying of such electric street railway in this street did not impose an additional servitude. Because it may be clear, according to the authorities, that the laying of a street railway in the streets of a city in a proper way, not involving an abuse of the streets, does not impose a new servitude, it does not in any manner follow that the improper laying of a street railway, under circumstances such as are shown in this record, does not constitute an abuse of a legitimate use, amounting to a nuisance, for which the injured abutter may recover such damages as the evidence shows. We are therefore clearly of the opinion, without regard to the question whether the laying of a street railway is ordinarily a new servitude, as to which we now say nothing, since we do not regard it as necessarily presented for decision, that Mrs. Slaughter, the appellant, is entitled to recover special damages in this case.

Wherefore the suggestion of error is sustained to the extent of withdrawing the former opinion but the decree of the chancellor is reversed, for the reasons herein indicated above, and the cause remanded.

Reversed and remanded.

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Concurrence Opinion

May.es, J*.,

delivered the following concurring opinion in response to the suggestion of error, concurring in the result only.

My view of the law applicable to this case is found in the original opinion. I do not think the suggestion of error ought to be sustained in any particular. The majority opinion makes the same disposition of the particular ease as was made by the original opinion, and in so far as it does that I concur in the result, but not 'in the reason assigned for the reversal. Under sec. 17 of Constitution of this state, and adhering to the former construction of this section of the Constitution as announced by tbis court, it is my view that it must be held that a ■street railway imposes an additional burden on tbe streets to tbe extent of enabling any abutting property owner damaged thereby to recover such damage as be may sustain.

Tbe original opinion is directed to be set out in tbe record of tbis case, containing all authorities I rely on.