Adams v. Chicago, Burlington & Northern Railroad Company
| Decision Date | 15 October 1888 |
| Citation | 39 N.W. 629,39 Minn. 286 |
| Parties | George K. Adams v. Chicago, Burlington & Northern Railroad Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Winona county, refusing a new trial after a trial by Start, J., a jury being waived.
Wm Gale, J. W. Losey, and Young & Lightner, for appellant.
Tawney & Randall, for respondent.
OPINION
Second street, in the city of Winona, is, and for 30 years has been a public street, 70 feet wide, running nearly east and west through the city. Plaintiff is the owner of and occupies as his residence a lot abutting on the south side of said street. The defendant, under authority of the common council, which authority the city charter empowered the council to give, has constructed and is operating the main line of its railroad, an ordinary commercial railroad, running to and through Winona, upon and along the north half of Second street, passing in front of plaintiff's lot, no part of the track being laid south of the centre line of the street. Safe and convenient ingress and egress to and from plaintiff's lot are not materially impaired. The injurious consequences to the lot are not due to any improper construction or operation of the road, but are such as result from constructing and operating a railroad along a street in an ordinary and prudent manner. These injurious consequences arise from the engines and trains passing day and night, and throwing steam, smoke, dust, and cinders upon the plaintiff's premises, and into his house, polluting the air with offensive smells, and interfering with the free circulation of light and pure air into and upon his premises, and jarring the ground so as to cause the house and furniture to vibrate; causing physical discomforts and annoyances to plaintiff and his family, and whereby the rental value of his premises is diminished. The court below ordered judgment for the plaintiff for the damage to the rental value up to the commencement of the action, and the defendant appeals.
The principal question involved has never been directly before this court. There have been, however, cases in which the decisions bore incidentally upon it. It is well settled that where there is no taking of, or encroachment on, one's property or property rights by the construction and operating of a railroad, any inconveniences caused by it, as from noises, smoke, cinders, etc., not due to improper construction, or negligence in operating it, furnish no ground of action; as when the railroad is laid wholly on land which the company has acquired by purchase or condemnation, or in which the party has no interest, so that it does no wrong to him in constructing and operating the road, though there may be some inconvenience or damage to him arising from it, if it be such as the general public suffer, he has no legal cause to complain. Railroads are a necessity, and the public, which enjoys the general incidental benefits from them, must endure any general inconveniences necessarily incident to their construction and operation. And if a railroad company even wrongfully obstructs a street abutting on one's premises, not at the part of the street where it so abuts, unless access to his premises is thereby cut off or materially interfered with, any inconvenience that he may suffer therefrom furnishes no ground for a private action, because the wrong done is a public wrong for which the public authorities are the proper parties to seek redress. See Shaubut v. St. Paul & Sioux City R. Co., 21 Minn. 502; Rochette v. Chicago, Mil. & St. Paul Ry. Co. , 32 Minn. 201, (20 N.W. 140;) Barnum v. Minnesota Transfer Ry. Co., 33 Minn. 365, (23 N.W. 538.) But if a railroad, not touching one's premises, obstructs a street abutting on or leading to them, so as to cut off or materially interfere with his only access to them, the inconvenience is deemed to be special, and not one common to the public, and an action lies. Brakken v. Minn. & St. Louis Ry. Co., 29 Minn. 41, (11 N.W. 124.) It is the same where one owns land abutting on a navigable river or lake, and a railroad is laid along between the land and the navigable water. Brisbine v. St. Paul & Sioux City R. Co., 23 Minn. 114; Union Depot, etc., Co. v. Brunswick, 31 Minn. 297, (17 N.W. 626.) And also where a strip between the lots and the river has been dedicated to public use as a levee or landing, and a railroad is laid upon it. Schurmeier v. St. Paul & Pac. R. Co., 10 Minn. 59, (82,) (88 Am. Dec. 59.) Where, however, there is a taking of a part of a tract or lot of land, the diminution in value of the part not taken, caused by the noise of passing trains, and inconvenience and interruption to the use of the part not taken, resulting from the ordinary operation of the road, (County of Blue Earth v. St. Paul & Sioux City R. Co., 28 Minn. 503, 11 N.W. 73;) and from increased exposure of buildings already erected to danger of fire from passing trains, ( Colvill v. St. Paul & Chicago Ry. Co., 19 Minn. 240, (283;) Johnson v. Chicago, B. & N. R. Co., 37 Minn. 519, 35 N. W. 438;) and from increased danger of injury to or destruction of the household of the owner, unless the property not taken is equally valuable for some other purpose, -- Curtis v. St. Paul, S. & T. F. R. Co., 20 Minn. 19, (28,) -- are proper elements of the damages to be allowed for the taking.
From these decisions the propositions may be stated: That the right of recovery against a railroad company, when there is no improper construction of or negligence in operating the railroad, for inconveniences caused by noises, smoke, dust, and cinders, does not depend on the fact that such inconveniences exist, if they be such as are common to the public at large, but on the fact that there has been a taking of the parties' property for the purpose of the railroad, accompanied with such inconveniences, or to which they are incident; and, if necessarily caused by the company's proper use of its own property, there can be no recovery because of them. And that, where there is a taking, such inconveniences as are necessarily incident to it, and to the use for which the property is taken, are proper elements of the damages to the party. And this further proposition (fully established and more clearly set forth in many other decisions of this court) that the rule of damage is applied only to a case where part of a distinct tract or lot is taken, in which case the damages only to the part not taken are to be estimated. As to that only are the damages deemed special. As to other distinct tracts or lots of the same owner the inconveniences are generally such as the public suffer.
As the plaintiff does not claim to own the land in the street which the company has taken for its road, but claims only a right or interest in the nature of an easement in it appurtenant to his lot, the question has been raised and discussed, at considerable length, whether, conceding the right or interest he claims, the acts of the defendant constitute a taking, within the constitutional provision prohibiting the taking of private property for public use without just compensation. As that provision is inserted for the protection of the citizen, it ought to have a liberal interpretation, so as to effect its general purpose. All property, whatever its character, comes within its protection. It is hardly necessary to say that any right or interest in land in the nature of an easement is property, as much so as a lien upon it by mortgage, judgment, or under mechanic's lien laws. If a man is deprived of his property for the purpose of any enterprise of public use, it must be a taking, even though the right of which he is deprived is not and cannot be employed in the public use. In the case of a lien on land taken for railroad purposes, the company cannot make any use of the lien. It does not succeed to the ownership of it. It merely displaces it, -- destroys it. So, in case of an easement. If A. has, as appurtenant to his lot, an easement for right of way over the adjoining land, and such adjoining land is taken for railroad purposes, the company does not and cannot succeed to the easement. But it may destroy or materially impair it by rendering it impossible for the owner of it to enjoy it to the full extent that he is entitled to. Such destruction or impairment is within the meaning of the word "taken," as used in the constitution, as fully as is the depriving the owner of the possession and use of his corporeal property.
The main question in the case is, has the owner of a lot abutting on a public street a right or interest in the street opposite his lot, as appurtenant to his lot, and independent of his ownership of the soil of the street, and, if so, what is that right or interest? If he has, and the acts of the defendant in constructing and operating its railroad along that part of the street opposite plaintiff's lot prevent or impair his enjoyment of such right or interest, then he has a right to recover.
We find a great many cases in which is stated, in general terms, the proposition that, although the fee of the street be in the state or municipality, the owner of an abutting lot has, as appurtenant to his lot, an interest or easement in the street in front of it, which is entirely distinct from the interest of the public. Grand Rapids & Ind. R. Co. v Heisel, 38 Mich. 62; Lexington & Ohio R. Co. v. Applegate, 38 Ky. 289, 8 Dana 289, (33 Am. Dec. 497;) Elizabethtown, etc., R. Co. v. Combs, 73 Ky. 382, 10 Bush 382; Haynes v. Thomas, 7 Ind. 38; Protzman v. Indianapolis, etc., R. Co., 9 Ind. 467, (68 Am. Dec. 650;) Stone v. Fairbury, etc., R. Co., 68 Ill. 394; Tate v. Ohio & Mississippi R. Co., 7 Ind....
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