Briggs v. Lewiston

• Decision Date: 14 April 1887
• Citation: 79 Me. 363,10 A. 47
• Parties: BRIGGS v. LEWISTON and another.
• Court: Maine Supreme Court

10 A. 47

79 Me. 363

BRIGGS

v. LEWISTON and another.¹

Supreme Judicial Court of Maine.

April 14, 1887.

On report from supreme judicial court, Androscoggin county.

Trespass by an abutting owner against a horse-railroad company for use of the street with its tracks and cars, and lowering the grade. The opinion states the material facts.

Savage & Oakes, for plaintiff. Frank W. Dana and Willard F. Estey, for defendant.

EMERY, J. A strip of the plaintiff's land in Auburn had been lawfully taken, by public authority, for a public highway, and just compensation had been made to the owner therefor. The defendant company had subsequently constructed a street railroad (commonly called a "horse railroad") in this highway, and over the strip of land thus taken from the plaintiff's land. Early in 1885 the company lowered the grade of their rails on this strip, whereupon the plaintiff brought this action, alleging said acts of the defendant company to be a trespass on her land. All of these acts of the defendant were within the limits of the highway, and were done under express license from the city council of Auburn, and from the legislature. They would not, therefore, constitute any trespass on the plaintiff's land, if such license conferred lawful authority. The plaintiff contends, however, that the license invoked in this case has no validity, and confers no authority, because it undertakes to make a new and different use of her land, without providing a just compensation therefor.

We do not think the construction and operation of a street railroad in a street is a new and different use of the land from its use as a highway. The modes of using a highway strictly as a highway are almost innumerable, and they vary and widen with the progress of the community. When a highway is first established in some unfrequented locality, it may exist for a time as a rude road, with a narrow track, and only occasionally used. With the growth of population and business, and the transformation of the lonely neighborhood into a thriving and increasing city, the highway may also go through the transformations of being turnpiked, planked, macadamized, and paved for its entire width. From bearing an occasional rude cart, it may come to sustain an endless succession of wagons, drays, coaches, omnibusses, and other vehicles of travel and traffic. There is a continual march of improvement in streets and vehicles. It cannot be that the land-owner must be compensated anew, at each new improvement in street or vehicle, or with any increase of traffic. All the land originally taken was taken for a highway, and for all time, if needed, and the compensation was estimated on that basis. The taking and the payment were once for all. The public, at the first taking, acquired an untrammeled right of way over every part of the land taken, with full right to do all things upon the land to facilitate its use as a highway, and make it sufficient at any time for the increasing need of the public for a highway. There is in...