Stockdale v. Rio Grande Western Railway Co.
77 P. 849
Utah
1904
Check Treatment

Lead Opinion

McCARTT, J.,

after making the foregoing statement, delivered the opinion of the court.

The first question presented by this appeal is, did ■the city council exceed its power by granting to defendant railway company a franchise to construct and operate the switch or spur track in question.? The power of a city council to grant franchises to railroad companies 1 to make a reasonable use of the public streets of the municipality, for the purpose of constructing and operating thereon railroads designed for the use of the public for the transportation of passengers and freight, is so well settled that a discussion of this *207doctrine, which is fundamental, seems unnecessary. Plaintiffs, however, contend that the switch track under consideration is designed wholly for the exclusive use 2 and benefit of a strictly private enterprise, and that its maintenance and operation would in no way subserve the public interest, and would have no relation whatever to the public convenience or welfare, and that therefore it does not come within the foregoing rule. We do not think the record supports this contention. True, the franchise' was granted the railway company to build the switch track in question on the petition of the Anheuser-Busch Brewing Association, but the petition does not even suggest that the switch is designed for the exclusive use of . the petitioner. That it is not so intended is apparent from the city ordinance granting the franchise, which provides, in part, as follows: “A franchise and right of'way is hereby given and granted to the Rio Grande Western Railway Company, its successors and assigns, to lay, construct, and operate a switch or spur standard gauge railroad track leading from a convenient point on . . . its railroad line on Fourth West street to and onto lot 4, block 29, in Plat ‘A,’ Salt Lake City Survey.” The ordinance provides that the track shall be laid, maintained, and operated under certain restrictions as to grade crossings, culverts, etc., but no mention is made of the defendant Anheuser-Busch Brewing Association; nor is it even suggested anywhere in the ordinance that the use of the switch track is to be limited or in any wise restricted from that made by the balance of the railway system of which it forms a part. In fact, the record affirmatively' shows that its maintenance and operation will be subject to and controlled by the same rules and regulations as the balance of the system. Joseph H. Young, the general superintendent of the defendant railway company, testified — and his testimony on this point is not disputed — that the property in the. vicinity of the switch tracks is largely devoted to warehouse purposes, and that this spur is not only intended for the *208purpose of freight to and from the warehouse of the brewing association mentioned, but to and from any and all other warehouses that may hereafter be built in the vicinity of the spur. Neither do we think the maintenance of the spur track under the circumstances and conditions as shown by the record is an unreasonable use of the street for trackage purposes.

Plaintiffs cite and rely upon the case of Cereghino v. Oregon S. L. R. Co., 26 Utah 467, 73 Pac. 634, recently decided by this court, which they insist is decisive of the case under consideration. In that case the city council of Salt Lake City, on petition of the Consolidated Wagon & Machine Company, a private corporation, granted by resolution to the railway company a franchise to construct on one of the public streets of the city a switch track to be used for the. exclusive benefit and convenience of said wagon and machine company. The record in that case also showed there were thrée other switch tracks on the street in the vicinity of plaintiff’s property, and that the construction of an additional switch track immediately in front of, and in close proximity to, her property, would have shut it off from the street by a network of railroad tracks, the operation of which would have greatly depreciated the value of, if not entirely ruined such property, for the purposes to which it was devoted. In deciding the case this court held that the city council had not properly exercised its power' in granting the franchise, and that it could not lawfully permit the use of the public streets for exclusively private purposes, to the detriment of the public, and damage to private property abutting on such street. In the case at bar, as1 hereinbefore observed, the switch track complained of is a part of a general railway system, and may be used by any and all who may have occasion to ship freight over it, and is not designed for the exclusive use, benefit and convenience of any particular person, company, or corporation. True, it is evident from its location and surroundings that only a limited number of persons and business *209institutions will have occasion to nse it, but that does not make of it a private undertaking. The test is, will any and all persons and business institutions who may have occasion to do so be permitted to use it? That is, will the track be open to public use generally? If so, then it is a public utility. Clarke v. Blackmar et al., 47 N. Y. 150; Lewis, Eminent Domain, 171; Kettle River R. Co. v. Eastern Ry. Co., 41 Minn. 641, 43 N. W. 469, 6 L. R. A. 111. In the case of Chicago, B. & M. Ry. Co. v. Porter, 43 Minn. 527, 46 N. W. 75, it was held that “the character of the use in the case of a railroad or railroad track does not depend upon the amount of business or number of persons who have occasion to use it, but on the right of the public to the benefit of it.”

In Phillips v. Watson, 63 Iowa 28, 18 N. W. 659, this same general question was involved, and the court said: “The character of a way, whether it is public or private, is determined by the extent of the right to use it, and not by the extent to which the right is exercised. If all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small.” And likewise in the case of People v. Blocki, 203 Ill. 363, 67 N. E. 809, it was held that “all termini of tracks and switches are more or less beneficial to private parties, but the public character of the use of the tracks is never affected by this. If they are open to the public use indiscriminately, and under public control to the extent that railroad tracks generally are, they are tracks for public use.” Tested by this rule, which is supported by the weight of authority, the findings of the trial court that the city council exceeded its authority in granting the franchise, and that the spur track is a public nuisance, are erroneous.

Appellants’ next contention is that the court erred in finding that the operation of the switch track will be a taking of plaintiffs’ property, and a continuous trespass thereon, and that plaintiffs are entitled to injunc-*210tive relief. It is not shown, nor do we understand respondents to claim, that the operation of that part of the switch track extending from the main line of railway to the point where it enters the premises of defendant Anhenser-Bnsch Brewing Association, which point of entrance is abont the same distance from plaintiffs’ premises as the main line, would materially damage their property, or subject them to any inconvenience, other than that suffered by others who may have occasion to use the street and sidewalk. But it is insisted— and there is evidence in the record that supports the contention — that the operation of that part of the spur track which is entirely within the premises of the defendant Anheuser-Busch Brewing Association, and passes within twenty-five feet of the brick house mentioned in the statement of facts, and then extends nearly the entire length of plaintiffs’ premises, and within five feet thereof, would not only materially depreciate the value of said premises, but the shaking of the house by the passing engine and freight cars, and the smoke and cinders from the engine, would be a continuous source of discomfort and annoyance to the plaintiffs and their tenants. Therefore the important question is, are the plaintiffs, under these circumstances and conditions, entitled to injunctive relief? Appellants insist, on the one hand, that- as the spur track was constructed in pursuance of a franchise regularly granted by the city of Salt Lake, and is, in contemplation of law, a public highway, respondents’ only remedy, if they have one, is by an action at law for damages; while, on the other hand, respondents, with equal vigor, contend that the maintenance and operation of the track will amount to a continuous trespass upon their property, to their discomfort and irreparable damage, and that by the terms of section 22, art. 1, of the Constitution of this State, which provides that “private property shall not be taken or damaged for public use without just compensation,” they are entitled to equitable relief to restrain the threatened trespass. The authorities do not all *211agree as to just what will amount to a taking of private property, within the meaning of the provision of the Constitution of the United States, which provision, with an occasional change in the phraseology, has been incorporated into the Constitutions of the several states, namely, “Private property shall not he taken for public use without just compensation.” Many of the earlier eases adopted the more restricted construction, and held that, to bring a case within the foregoing provision of the Constitution, there must be an actual physical appropriation of the private property sought to be converted to a public use; but, as stated in 1 Lewis on Eminent Domain (2 Ed.), section 57, “the law, as to what constitutes a taking, has been undergoing radical changes in the last few years.” And the great weight of judicial authority, which we believe to be supported by the better reason, and which is more in accord with our ideas of equity and natural justice, holds that any substantial interference with private property which 3 destroys or materially lessens its value, or by which the owner’s right to its use and enjoyment is in any substantial degree abridged or destroyed, is, in fact and in law, a taking, in the constitutional sense, to the extent of the damages suffered, even though the title and possession of the owner remain undisturbed. Rigney v. Chicago, 142 Ill. 64; Vanderlip v. City of Grand Rapids et al., (Mich.) 41 N. W. 677, 3 L. R. A. 247, 16 Am. St. 597; City of St. Louis v. Hill, 116 Mo. 527, 22 S. W. 861, 21 L. R. A. 226; Forster v. Scott, 136 N. Y. 577, 32 N. E. 976, 18 L. R. A. 543; Pearsall v. Supervisors, 74 Mich. 558, 42 N. W. 77, 4 L. R. A. 193; Omaha v. Kramer, 25 Neb. 489, 41 N. W. 295, 13 Am. St. 504.

Some of the earlier decisions of the Supreme Court of the United States and some of the State courts, as well as the opinions of most of the text-writers who have discussed this question in their treatises on constitutional law and the law of eminent domain, have declared in favor of the more liberal and broader construction of *212the foregoing constitutional provision. Eaton v. B., C. & M. R. R. Co., 51 N. H. 504, 12 Am. Rep. 147; Thompson v. Androscoggin Co., 54 N. H. 545; Grand Rapids B. Co. v. Jarvis, 30 Mich. 308; Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557; Lewis, Eminent Domain (2 Ed.), section 91e, and cases cited in note. Mr. (Sedgwick, in his work on Constitutional Law (2 Ed.), pp. 462, 463, says: ‘ ‘ The tendency under our system is too often to sacrifice the individual to the community, and it seems very difficult, in reason, to show why the State should not pay for the property of which it destroys or impairs the value, as well as for what it physically takes. If, by reason of a consequential damage, the value of real estate is positively diminished, it does not appear arduous to prove that, in point of fact, the owner is deprived of property, though a particular piece of property may not be actually taken.” Elliott on Roads & Streets (2 Ed.), section 202; Mills on Eminent Domain (2 Ed.), sections 30-32. Several of the States, in order to set at rest this much-vexed question, and at the same time give additional security to private property within their respective commonwealths, have had incorporated into their several Constitutions the word “damaged,” or its equivalent, and associated it with the word “taking;” thereby providing that private property can be neither taken nor damaged for public use without just compensation.

Appellants insist that, the city council having, lawfully granted the defendant railway company a franchise to maintain and operate the spur track in question, plaintiffs’ only remedy is by an action at law to recover such damages as they may sustain by its operation, and cite the case of Cereghino v. Oregon S. L. R. Co., supra, in support of their contention. The Cereghino case is not in point, and has no application to the issues in this case, only so far as the right of defendant railway company to occupy the street and sidewalk with the switch track is involved.

While the franchise granted in this case gives the *213defendant railway company the right to occupy the 4 street and sidewalk with its spnr track, it does not clothe it with power by which it can rightfully extend the track on and over the premises of its co-defendant, and to maintain and operate it to the irreparable damage of plaintiffs’ property. And the evidence shows that the operation of that portion of the 5 spnr track which is constructed on the private property of the Anheuser-Busch Brewing Association would be a source of great annoyance and discomfort to plaintiffs and their tenants, and would, in effect, as found by the court, amount to a private nuisance. Section 3506, Revised Statutes 1898; Wood on Nuisances (2 Ed.), p. 127; Lewis on Eminent Domain, section 152.

Under the provisions of the Constitution of this State hereinbefore referred to, a party whose property is about to be specially damaged in any substantial degree 6 for public use has the same rights and is given the same remedies for the protection of his property from the threatened injury as would be accorded him if his property was actually taken and appropriated for such use. That such is the spirit and intent of the foregoing provision of the Constitution is evident from the tone and character of the extended discussions on this question in the constitutional convention at the time the provision was adopted and became a part of the organic law of the State. Pages 326-344, 623-654, Proceedings Const. Conv. 1895.

We do not wish to be understood as holding that every inconvenience that an individual may be subjected' 7 to in the possession and enjoyment of his property because of the construction and operation of a railroad or other public utility in the vicinity of his premises entitles him to damages or injunctive relief. The rule is well settled that no recovery can be had for losses and inconveniences which are suffered in common with the general public. Elliott on Roads & Streets *214(2 Ed.), section 262; Lewis on Eminent Domain (2 Ed.), section 236a.

Before the appellant railway company can subject •the property in question, or any part thereof, to the burdens to which it would be subjected by the running of 8 cars and engines over the switch referred to, it must proceed under the law of eminent domain, as contemplated by the foregoing provision of the Constitution, and as required by the statutes of this State.

The judgment of the district court, so far as it affects that portion of the switch track located on the public street and requires the removal of the entire spur, is vacated, and said court is directed to so modify its findings and decree; but the judgment, in so far as it restrains the defendant railway company from operating cars and engines on the portion of the switch track located on the premises of the Anheuser-Busch Brewing-Association, is affirmed. The costs of this appeal are taxed against the appellants.

BASKIN, C. J., concurs.



Concurrence Opinion

BARTCH, J.

(concurring in part and dissenting in part). — I concur in that portion of the opinion which holds that the findings of the trial court that the city council exceeded its authority in granting the franchise to construct a spur track upon the street, and that the spur track is a public nuisance, are erroneous, and in that portion of the judgment of this court which vacates the judgment of the lower court in so far as it affects “that portion of the switch track located in the public street, and requires the removal of the entire spur;” but I dissent from the remaining portion of the opinion and judgment herein, because I do not think the facts in this case warrant interference by injunction, nor a proceeding under the law of eminent domain. If. the operation of the spur should, through carelessness or otherwise, cause injury to the plaintiffs, they have a remedy in damages.