Theobold v. Louisville, New Orleans & Texas Railway Co.

1.Street. Use by public. A street is a highway established for the accommodation of the public in passing from place to place, and for such other incidental uses as are ordinarily made of public thoroughfares, such as laying drains, sewers, gas and water pipes, and the like. For such uses public streets are free to all alike. 2. Same. Co-existent right of abutting owner. Co-existent with the right of the public to use and improve the street for all ordinary and proper purposes, is the right of the adjacent lotowner to have access to and from his property, and to make such other use of the street as is reasonable and customary. 3. Steam Railroad. Additional servitude. Damages to owner. To construct or operate a steam railroad on a public street is to impose an additional servitude, not within the ordinary purposes of such a highway; and if a street is devoted to such use without condemnation or the consent of an abutting owner, he may recover damages from the railroad company for injuries to his property resulting therefrom. 4. Same. Whether public has fee or easement. Constitutional right. Whether the public has a mere easement or whether the fee to the street is in the adjacent proprietor, the public, or a third person, the constitutional guaranty of private property applies, and, without compensation being first made, the public cannot lawfully authorize such use of the street by a railroad company against the owner’s consent. 5. Distinction between Horse and Steam Railways. In the use of a public street, in respect to the rights of adjacent owners, a difference is recognized between an ordinary horse railway and a steam railroad; but whether the difference is only one of degree the court is not called upon to decide in this case.

From the circuit court of Warren county. Hon. Ralph North, Judge. This was an action of trespass brought in 1888 against the Louisville, New Orleans and Texas Railway Company by the appellant, Theobold, the owner of a lot of land situated on Levee street iu the city of Vicksburg. The defendant owns and operates a line of railroad extending from Memphis, Tenn., to New Orleans, passing through Vicksburg and over Levee street. The declaration alleges that the defendant in 1883, without any condemnation proceedings and without permission of plaintiff, constructed its track on said street and has since been operating the railroad, to the great damage of plaintiff’s property. The plaintiff alleges that his lot extends to the centre of the street, which is a right of way granted to the city for the ordinary uses of a public street; that the occupation by the railroad is not within the use contemplated in the grant or dedication, and imposes an additional burden, for which plaintiff claims that he was entitled to compensation. A general demurrer was sustained to the declaration, and the suit was dismissed. The plaintiff appealed. Injustice to the judge of the court below, counsel for the appellant state in their brief that, as there were a number of cases of the character of this pending in the court, by an arrangement of counsel, with the consent of the court, judgment was entered sustaining the demurrer in order to get a test case on appeal, to settle the principles applicable to the several cases. Where a street is dedicated the abutting proprietor owns to the centre, subject to an easement in the public; and subsequent; purchasers own to the centre of the street, though their deeds only describe the land as abutting on the street. 3 Kent. Com. (6th ed.), p. 432, note d; Dill. Mun. Cor., §§ 633, 66.3, and notes. “ But the easement of the public does not include the use, of a street by a steam railroad, nor by an elevated railroad, even if the city owns the fee in the street.” Washb. Eas., p. 252. Where the public has only an easement in the street, the laying of a railroad track is an additional burden, and abutting owners 'are entitled to compensation for the new servitude. Dill. Mun. Cor., §§ 703, 716, and note to § 703; Imlay v. B. B. Co., 68 Am.' Dec. 392, and note; Williams v. B. B. Co., 69 Am. Dec. 651 and note. . Although the fee of the street is in the abutting owner, a municipal corporation may grant the right to a railroad company to lay its track in the street; but the company is liable to the owners for injuries resulting to his property. B. B. Co. v. Hartley, 67 111. 439 (s. o. 16 Am. R. 624). In such cases neither the legislature nor the municipal authorities have power to dispense with making compensation. 80 Am. Dec. 791 and notes; 40 Wis. 652. It is immaterial whether the fee is in the public or in the adjacent landowner, or in a third person. Barney v. Keokuk, 94 U. S. 324. See also B. B. Co. v. Schurmeir, 7 Wall. 272. Lotowners have a peculiar interest in the adjacent street, a franchise, the right to which is as inviolable as the property in the lots themselves. Dill. Mun. Cor., § 712 and note. See also Chicago v. Taylor, 125 U. S. 161; Cooley’s Const. Lim., p. 549 ; lb., p. 545 et seq., and numerous authorities there cited. Const. Miss., art. i, §§ 2, 10. While there is some conflict, the great weight of authority supports the right to recover of railroad companies where their tracks are laid in the public streets. We ask the court to settle all the questions that are presented, including those applicable to Gases in which the public owns the fee in the street as well as those in which only an easement is granted. The question presented in this case has never been adjudicated in this state. The nearest approach to a decision is Dannaher v. The State, 8 S. & M. 661. What is said there is obiter, but indicates that lotowners in a cáse like this have no right of action. The weight of authority seems to be that the lotowner has a right of action, as I am fully aware, but I contend that these decisions are not based upon sound reasoning. To hold now, when thou-r sands of streets are occupied by railroads, when there is scarcely a city or even a town of importance in this country without railroads on its streets, is to hold that the owner of land in platting'his property and dividing it into lots and streets is not presumed to expect that at some day a railroad may be constructed on one or more of these streets. If the owner is not presumed to dedicate the streets for any such purpose, then we are to conclude that all towns are laid off with a view to having communication with the balance of the world by the old methods of travel and transportation only. Mr. Dillon in his work on Municipal Corporations (§ 725), while stating that the weight of authority supports the view that would give a right of action in this case, says it deserves further consideration whether the power of the legislature over the uses to which highways may be put is really subject to this supposed constitutional limitation. And he adds: “Although the decisions as to the power of the legislature iti such cases to authorize street railways without compensation to the adjoining freeholder are conflicting, it is believed that such railways, as ordinarily constructed and used, do not create a new burden upon the land, and hence the legislature is not bound to, although it may, provide compensation to the adjacent proprietor.” Pierce, in his work on Railroads (p. 234), adopts the view that a railway on a highway is not necessarily a different use, and, therefore, that the abutting owner has no right of action. The supreme court of the United States, in Barney v. Keokuk, 94 U. S. 340, says that a street, “ may be occupied by those important iron ways for public passage which modern skill has provided and which the advance of general improvement requires.” After commenting on horse railroads, the court then uses this language: “Soother railways coming to cities add greatly to their wealth and population and furnish greatly increased facilities of communication with other portions of the country.” In the case of Philadelphia v. B. R. Co., 6 Wharton 25 (s. c. 36 Am. Dec. 2U2), the court uses this language: “ Even agreeing that this grant extends to the middle of the street, the public has a right of way over it. Neither the part used for the street nor the part occupied by himself is taken from him ; and, as it was dedicated to public use without restriction, he is not within the constitutional prohibition, which extends not to matters of mere annoyance. The injury of which he can complain is not direct,, but consequential. It consists either in an obstruction of his right of passage, which is personal, or in a depreciation of his property by decreasing the enjoyment of it; but no part of it is taken from him and acquired by the company.” In the case of Macomber v. Nichols, 34 Mich. 212. (s. c. 22 Am. R. 522), Judge Cooley, in delivering the opinion of the court, says: “When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods; and it cannot be assumed that its use will be the same from age to-age, or that new means of making the way useful must be excluded, merely because their introduction may tend to the inconvenience or even the injury of those who may continue to use the road after the same manner as formerly. A highway established for the general benefit of passage and traffic must admit of new methods whenever it is found that the general benefit requires them ; and if the law should preclude the adaptation of the use to the new methods, it would defeat, in greater or less degree, the purposes for which highways are established. * * * The law cannot define what exclusive means of transportation and passage shall be used. Universal experience shows that this can best be left to the determination of the municipal authorities, who are supposed to be best acquainted with the wants and necessities of the citizens generally. To say that a new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because streets were not so used in the days of Rlackstone, would hardly comport with the advancement and enlightenment of the present age.” See also Moses v. R. R. Go., 21 111. 522; R. R. Go. v. Newark, 2 Stockton (N. J.) 352 ; Attorney-General v. R. R. Go., 4 C. E. Green (N. J.) 386. In this last case the court plainly indicates that if the railroad company had been given the legislative authority, it could have laid its track upon a dedicated street. In R. R. Go. v. Applegate, 8 Dana 289, the supreme court of Kentucky held that the construction of a railroad upon a street under municipal and legislative sanction was not a nuisance, and that the abutting landowner could not enjoin. Perry v. B. B. Co., 55 Ala. 413 (28 Am. B. 740), is a well-considered case in which an elaborate review of the authorities is made, and the conclusion is reached that the owner of an abutting lot on a dedicated street has no right of action. The decisions of that court have always been held in high esteem by our supreme court and -by the profession. All the authorities, so far as I have found, hold that where the fee of the street is in the city, a railroad can lawfully be constructed thereon, where legislative authority is given, or where the municipal authorities, under a power in the charter, grants the right. And the distinction between a dedicated street, where the public has an easement, and one in which it has the fee in the street is unfounded. The basis of the decisions which hold that abutting owners on a dedicated street, by reason of their vague, intangible, and remote interest in the street, have other or higher rights than others where the fee is in the public, is unsound, as I contend. ■ The charter of the city of Vicksburg, acts 1884, authorizes the grant of the right of way by ordinance for the construction of railroads on the streets. Express authority for this purpose was given in the charter of the Miss. Valley and Ship Island B. B. Co., and appellee holds as purchaser from that company. These facts are stated in order that there may be a full and complete adjudication of all the questions by this court, this being desired by both parties.