113 N.C. 610 | N.C. | 1893
The plaintiff is the owner of a lot abutting upon one of the streets of the city of Winston, and brings this action to recover damages for various injuries to her said property, inflicted by the defendant by reason of its having entered upon and constructed its railroad through the said street.
The questions presented, therefore, are whether, as against the abutting owner, the city can authorize the use of its streets for the purposes of an ordinary steam railroad, and whether such abutting owner has any proprietary rights, for the violation of which she can maintain an action.
It does not appear how the city acquired its title to the street in question, nor do we learn from the record whether it owns the fee in the soil, or simply an easement therein. In
This introduces us to the very important question, never before passed upon by this tribunal, whether or not the use of a steam railroad is a perversion of the street from its original and proper public purposes. There has been much discussion and not a little conflict of judicial decision upon this subject, but it is believed that the weight of authority greatly preponderates in favor of the affirmative view of the proposition. Judge Dillon, after a careful investigation, states his conclusion as follows: “ The weight of judicial authority undoubtedly is that where the public have only an easement in the streets/and the fee is retained by the adjacent owner, the Legislature cannot, under the constitutional guarantee of private property, authorize an ordinary steam railroad to be constructed thereon, against the will of the adjoining owner, without compensation to him. In other words, such a railway as usually constructed and operated is an additional servitude.” 2 Dillon Mun. Corp., 725. In Mills on Eminent Domain (section 204) the same doctrine is laid down, and it is said : “The Lfgislature may authorize the use of a street by the railroad, so as to make the entry lawful, but the use is an additional burden, and the right will not become fixed in the company until compensation is made. If no
In Lewis on Eminent Domain (section 111), the able and discriminating author remarks: “ To us it seems so clear that a railroad is foreign to the legitimate uses of a highway that we never have been able to understand how a Court could reach a contrary conclusion.” After stating that highways have from time immemorial been devoted to the common 'use of every citizen, and that no one had a private right or any exclusive privilege therein, the author proceeds: “The railroad does not fall within the scope of such uses. It requires a permanent structure in the street, the use of which is private and exclusive. It gives to an individual or corporation a franchise and easement in the street inconsistent with the public right. To hold that a railroad is one of the proper and legitimate uses of a street leads to the absurd consequence that a street might be filled with parallel tracks, which would practically exclude all ordinary travel and still be devoted to the ordinary uses of a highway. The law ought not to tolerate such a consequence.”
In Elliott on Roads and Streets (528) the author cites many authorities and concludes by saying that the weight of authority is that such an appropriation of a street is “ a new’ and additional burden,” for which the abutter is entitled to compensation.
In support of his proposition he quotes the following language of Judge Cooley: “Neither can the use of the highway for the ordinary railway be in furtherance of the purpose for which the highway is established, and a relief to the local business and travel upon it. .The two uses, on the other hand, come seriously in conflict. The railroad constitutes a perpetual embarrassment to the ordinary use, which is greater or less in proportion to the business that is done upon it and the frequency of trains. When, therefore, the country highway or the city street is taken for the purposes
In Hare’s Ann. Const. Law, 361, the foregoing doctrine is fully approved, and it is said: “ It is immaterial as regards the principle whether the land is given voluntarily or taken under the right of eminent domain. If the owner dedicates the land, it is for the continuing uses of a street. If it is condemned, such also is the end in view. To convert a common highway over a man’s land into a railroad is therefore to impose an additional burden upon the land, which greatly impairs its value, considered as a whole; and if the owner is not compensated his consent must be proved. It cannot be said with truth that, in assenting to the laying out of the highway upon his land, he consented to the building of a railroad upon it, because they are essentially different. The one benefits his land, renders access to it easy, and enhances the price, while the other makes access to it difficult and dangerous, and renders it comparatively valueless. Nor can it be justly contended that a railway is merely an improved highway. * * * Were the transaction between individuals, everyone would see the injustice of such a conclusion. The doubt arises from the supposition that the public interest is involved ; and it was to guard against the bias arising from this source that the Constitution interfered to protect the citizen. It follows that the dedication of land as a street does not preclude the owner from bringing trespass or ejectment or obtaining an injunction against a railway company which is about to enter upon and occupy the way, and that the company cannot (in the absence of the exercise of the right of eminent domain) rely upon a grant from the Legislature and the license or consent of the municipality as a justification.”
In the discussion of the question, we have preferred to reproduce the conclusions of eminent text-writers rather than attempt a review of the numerous decisions upon which they are founded.- These decisions, and others we could cite, fully establish, upon principle and by weight of authorit}', the proposition that, where the public have only an easement in the street, and the fee of the soil of the street is retained in the abutting owner, a steam railroad cannot, under the constitutional guaranty of private property, be lawfully constructed and operated thereon against his will and without compensation. Grand Rapids Railroad v. Heisel, 47 Mich., 393; Southern Pacific Railroad v. Reed, 41 Cal., 256; Imlay v. Minnesota Branch Railroad, 26 Conn., 249; South Carolina Railroad v. Steiner, 44 Ga., 546; Daly v. Georgia Railroad, 80 Ga., 793; Cox v. Louisville Railroad, 48 Ind., 178; Kercheman v. C. C. & D. Railway Co., 46 Iowa., 366; Indianapolis Railroad Co. v. Hartly, 67 Ill., 439; Phipps v. West Maryland Railroad, 66 Md., 319; Springfield v. Conn. River Railroad, 4 Cush., 63; Harrington v. St. Paul &c. Railroad, 17 Minn., 215; Hastings and Grand Island Railroad v. Ingalls, 15 Neb., 123; Chamberlin v. Elizabethport Steam Cordage Co., 41 N. J. Equity, 43; Railroad Co. v. Williams, 35 Ohio State, 168; Ford v. Railroad, 14 Wis., 609; Carl v. Railroad, 46 Wis, 625; Buckner v. Chicago Railroad, 60 Wis., 264; Indianapolis Railroad v. McAhren, 12 Ind., 552; Theobold v. Louisville Railroad, 66 Miss., 279; Barney v. Keokuk, 91 U. S., 324 ; Adams v. Chicago Railroad Co., 39 Minn., 286.
If, however, we are wrong in the assumption that the plaintiff is the owner of the fee in the said street, and if it should appear upon another trial that the city has acquired it, either by dedication, grant or condemnation, it will be necessary to determine whether the plaintiff has an easement in said street to the extent that it shall be used only for street purposes, and whether her rights are “property rights” which cannot be impaired or destroyed except under the exercise of the right of eminent domain.
Distinctions based upon the legal ownership of the fee in respect to the rights of the abutting proprietor, have produced much confusion, resulting in many conflicting decisions; but the true principle which has been slowly, but surely, evolved from protracted discussion and experience, is that, in respect to the use of the soil for the purpose of a street (and apart from those reversionary or other rights peculiar to legal ownership), it is wholly immaterial where the legal title resides. The very power to take private property for public use, as well as the capacity of a municipal corporation to acquire it in any way, necessarily implies that it is to be held in trust for public purposes, and in tbe case of land acquired for the purposes of a street, there is something in the nature of a contract, under which two co-existent and inviolable rights are created, one belonging to the public to use and improve
The true principles applicable to this question have been declared by the Court of Appeals of New York, in Story v. Elevated Railroad Co., 90 N. Y., 122, and Lahr v. Elevated Railroad Co., 104 N. Y., These cases have been followed by subsequent decisions of other States, and their doctrine has been approved by the most prominent waiters upon the
“These judgments, and those that follow them, rest upon the foundation principle that whether the fee in the street is in the abutter, subject to the rights of the public, that is, to the paramount rights of the public for street uses proper; or whether the fee is in the public for street uses proper, in either case, and generally in both cases, the abutter is enti-, tied to the benefit of the street for all uses except street uses proper, subject, of course, to legislative and municipal regulations; and that such rights are property or property rights in the abutter, which can only be taken away by the Legislature on the condition of making compensation. And the abutting owner’s rights in the street are not affected by the source from which he derives his title. * * * If the abutter owns the fee of the street, his rights may be said to be legal in their nature. If he does not own the fee, those rights are in the nature of equitable easements in fee, the soil of the street being the servient, the abutting owner’s lot being the dominant tenement. Among the most important of such rights or easements is the abutter’s right to access, to light and to air. The Court accordingly held that, so far as the elevated railway structures interfered with such rights or easements, while the Legislature might authorize their erection and use, yet this could only be done as respects the abutter by the exercise of the right of eminent domain, viz., on condition of making compensation to the abutting owner for the damage which his property actually sustained.”
“The result of the author’s reflections upon this subject is that the views of the Court of Appeals are sound and just; sound, because they recognize the paramount nature of the public right to put the street to this new and necessary form of public use.; just, because they recognize and declare that the abutter has special proprietary rights or easements in
The contrary view, laid down in Wood’s Railway Law (2 Vol., 727), seems to be based upon the restricted interpretation of the word “taken,” it being applied by some of the Courts only to property actually taken and occupied, and all incidental damages to adjoining proprietors are regarded as “consequential” in their character and damnum absque inju-ria. The learned author admits that such would not be the case if the words used were “taken or damaged ; ” but by a reference to the opinion in Staton v. Railroad, 111 N. C., 278, it will appear from the cases cited that this restricted meaning of the word “ taken ” is not in accord with the more recent and better authorities, and is being rapidly submerged by the steady and increasing current of judicial decision. Lewis, supra, 58; Pumpelly v. Greenbay, 13 Wall., 166; Eaton v. Railroad, 51 N. H., 504.
The result of the numerous authorities is that in either /"view of the case, that is, whether the fee is in the plaintiff or r in the city, the plaintiff has certain proprietary r:ghts, of - which she cannot be deprived, even under the authority of the Legislature, without compensation. If her property is in any way injured by the use of the street for legitimate purposes, she cannot complain. But if the enjoyment of her private rights in the street is interrupted by a perversion of the street to uses for which it was not intended, and which the public right does not justify, and her property is thereby injured and its value impaired, she may maintain an action
It will be observed that the defendant did not introduce its charter or show that it had condemned any part of the street or the rights or easement of-the abutting proprietor. It justifies its conduct solely upon the mere license of the city of Winston, and in this view of the case its occupation, in so far as it affects the plaintiff, must be regarJed as unlawful.
As the facts were not fully developed on the trial, we do not deem it proper to further pursue the discussion.
New Trial.