Adams v. Hastings & Dakota R. Co.

• Decision Date: 01 January 1873
• Parties: CHARLES P. ADAMS v. HASTINGS & DAKOTA R. CO.
• Court: Minnesota Supreme Court

18 Minn. 236

CHARLES P. ADAMS

v. HASTINGS & DAKOTA R. CO.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Dakota county, granting a new trial.

The action was for trespass in constructing and operating a railroad without compensation along plaintiff's side of a public street in front of his lot.

Huddleston & Babcock, for appellant.

Seagrave Smith, for respondent.

RIPLEY, C. J.

The plaintiff's case is that in 1868 he was the owner and in possession of a lot in Hastings, on the east side of and fronting on Bailly street, (a street 99 feet wide,) as well as of said street to its center adjoining said lot, subject only to the easement of the public therein for a street, and that the defendant, without his consent, and without acquiring the right so to do by proceedings therefor pursuant to its charter, (Laws 1857, c. 39, § 9,) appropriated part of said street to its use for the purpose of laying a railroad track upon it, constructed said track on and along the center of said street in front of plaintiff's said premises, about 16 feet in width, extending about 10 feet east from the center of the street, and on a grade from 10 to 18 inches above the ordinary level of the street, and has ever since operated its railroad thereon, without his consent, and against his will, to his damage; thus presenting an analogous case, in respect of the facts, to Gray v. First Div. St. P. & P. R. R. 13 Minn. 315, (Gil. 289,) and Harrington v. St. Paul & S. C. R. R. 17 Minn. 215, (Gil. 188.) According to those decisions, and taking the plaintiff's case as aforesaid for granted, the defendant, supposing it to have been authorized (as it contends that it was) by the city council of Hastings thus to construct and operate its road, was nevertheless a trespasser in respect of the plaintiff, and an action lay for him to recover the damages he had sustained by reason of such illegal acts of the defendant.

In the present action the jury returned a verdict for the plaintiff, and assessed his damages in the sum of $1,000. The defendant moved for a new trial upon the grounds of (1) excessive damages; (2) that the verdict is not justified by the evidence, and is contrary to law; (3) errors in law occurring at the trial, and excepted to by the defendant. The plaintiff appeals from the order of the district court granting the motion.

Upon what ground such new trial was granted does not appear. We cannot reverse the order unless it appears that there is no ground upon which it can be sustained. Marsh v. Webber, 13 Minn. 109, (Gil. 99.)

This, we think, does not appear. We think it quite clear, upon the complaint, evidence, and charge, that the jury must have been under a mistaken impression as to the proper measure of damages; that in arriving at their verdict they took into consideration that which would have been proper for a jury impaneled in a proceeding by defendant, under its charter, to acquire the right of way, but not for this jury to consider, viz., the compensation to be made to plaintiff "for the taking or injuriously affecting of such lands or real estate." Section 9 of defendant's charter.

The defendant, as already stated, was a trespasser in respect of plaintiff. The plaintiff should, therefore, have recovered damage for the injury he had sustained by the said illegal acts of defendant on his land in constructing said track and running trains thereon, down to the commencement of the suit. But if defendant should continue thereafter to use said track against plaintiff's will, each day of such use would give him a fresh cause of action for each such unlawful entry upon and passage over plaintiff's land with its engines and cars.

The difference, therefore, is obvious between the measure of damages in the present case, and one in which the defendant should seek to become invested with all the right and title of the land, and entitled to full, free, and perfect use and occupation of the same for its purposes. Section 9 aforesaid.

If, indeed, the illegal occupation by defendant of plaintiff's land were of such a character as to amount to an ouster, he might maintain ejectment and recover the possession, with damages, for withholding the same. But this is not such an action. On the contrary, the plaintiff alleges that at the time of the commencement of the suit he was in possession of the locus in quo, "subject only to the public easement of said street."

Nor is this an action under the statute to abate the road as a nuisance. Gen. St. c. 75, § 25. In this action the plaintiff, alleging ownership and possession in himself of the street in front of his lot to its center, subject to said easement, complained that defendant in 1868, without his consent, entered thereon, and without paying or securing to him any compensation therefor or causing his damages to be assessed, wrongfully, without his consent, appropriated a portion thereof to its use for the purpose of laying a track, and dug up the street and constructed the embankment already described on and along the street to the length of 1,500 feet, laid down cross-ties and rails, and completed, and has ever since maintained and operated a railroad thereon, and subjected said street and plaintiff's land to the additional burden and servitude of said railroad embankments, etc., contrary to the dedication thereof to the public; that by reason of such wrongful acts of the defendant in building said road on and in said land and street, digging up the same and building embankments thereon, it caused the surface water in rainy weather to run into the plaintiff's cellar and well, and on other parts of his land, and deprived plaintiff of the free use of said lands and street as a highway, subjecting him to the dangers and annoyance of the railroad and cars and engines; that defendant also at times obstructed said lands and street with freight, baggage, wood, etc.; that said wrongful acts have caused a great depreciation in the value of plaintiff's lands. (It should be noted that the allegation which we have italicised is not found in the complaint in Gray v. First Div. St. P. & P. R. R., above referred to.)

Inasmuch as the plaintiff, as already remarked, alleges himself to have been in possession when he brought this action, it can only be considered as an action brought to recover damages for trespasses committed by defendant on his land, an action in the nature of an action of trespass quare clausum, stating a continuing trespass from the commencement of the construction of the defendant's road in building it on his land, and thereafter running its trains thereon at its pleasure in the operation of its railroad, and stating also certain other incidental trespasses, so to speak, in placing and leaving freight, etc., on his land.

As there is no presumption of law that such illegal running of trains and other trespasses will be continued in the future, — that the unlawful act of to-day will be repeated on the morrow, it is, of course, obvious that while the jury in the present case could assess past damages, they could not assess the permanent damages to accrue from an assumed continued use thereafter of the land by the defendant in the same way. Ford v. Chicago, etc., R. R. 14 Wis. 609.

The defendant may now, if it sees fit, proceed under its charter to acquire in plaintiff's land, by paying full and proper compensation therefor, the rights above stated. Such compensation, too, must include not only the value of the land taken, but also such incidental loss and damage as may be reasonably expected to result from the construction and use of the road in a legal and proper manner, necessarily including, therefore, permanent damages to accrue from a continued use of the road. Till it see fit to do so, if it continue meanwhile without his consent to run its trains over plaintiff's land, it is a trespasser, liable to him for such damages as he may sustain by such repeated illegal acts done on his land. 1 Redfield, Railw. c. 11, § 12; Harrington v. St. Paul & S. C. R. R. supra.

The...