Buhl v. Fort Street Union Depot Co.

• Decision Date: 06 February 1894
• Citation: 57 N.W. 829,98 Mich. 596
• Court: Michigan Supreme Court
• Parties: BUHL v. FORT ST. UNION DEPOT CO.

57 N.W. 829

98 Mich. 596

BUHL v. FORT ST. UNION DEPOT CO.

Supreme Court of Michigan

February 6, 1894

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Christian H. Buhl against the Fort Street Union Depot Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.

C. A. Kent, for appellant.

James F. Joy and F. A. Baker, for appellee.

MONTGOMERY J.

The common council of the city of Detroit vacated that portion of Fourth street in said city extending from Congress street to Fort street. The defendant thereupon occupied the vacated portion of the street for depot purposes, which of course resulted in closing the street to public travel. The action was had under authority of Act No. 94 of the Laws of 1891 amendatory to the "Union Depot Act," so called. The amendatory section of 1891 provides that "any corporation organized under this act, shall have power, with the consent of the common council of any city, or the village board of any village, in which the station and depot grounds of such company are located, to occupy and close any highway street or alley within the limits of its station and depot grounds, but such company shall pay to the parties entitled to the same, any and all damages that may accrue to them in consequence of the closing of any such highway, street or alley; and such damages may be recovered in an action on the case in any court of competent jurisdiction." The plaintiff is the owner of a brick block fronting Fourth street and extending from Larned street to Congress. He brings this suit to recover damages resulting to his property from the closing up of Fourth street between Congress and Fort. The portion of the street beyond Congress is made less accessible from plaintiff's property, it being made necessary to make a detour to Third street instead of passing directly through what was formerly a part of Fourth. It cannot be doubted that there has been some resulting disadvantage occasioned by the closing of that portion of the street. The question presented is, is the resulting inconvenience damnum absque injuria, or should the damages actually resulting to the property be held recoverable? It is contended, on the one hand, that such inconvenience as the plaintiff suffers is of like character to that which any member of the community submits to, differing only in degree. On the other hand, it is broadly claimed that under the statute in question any person who is actually damaged by the closing of the street is entitled to recover his damages, and the fact that it is difficult to draw the line showing when depreciation of property will end does not militate against the right, or present any greater obstacle than is often presented in other classes of cases, and that the question can safely be left to the good sense of the court and the jury.

1. Under the right of eminent domain, where there is no other limitation of the power than such as is contained in our constitution, which provides that private property shall not be taken for public use without just compensation, it is conceded that it is competent for the legislature to provide for a public improvement which may work an incidental damage to property without providing compensation for property not actually taken. See Pontiac v. Carter, 32 Mich. 164; Hinchman v. Detroit, 9 Mich. 103; People v Ingham Sup'rs, 20 Mich. 95. And the distinct question of whether the discontinuance of a public street, or its appropriation to other purposes than that of a highway, constitutes a taking of the property of the users generally (other than abutting owners) has been distinctly ruled in the negative by many of the American courts. See McGee's Appeal, 114 Pa. St. 477, 8 A. 237; Smith v. Boston, 7 Cush. 254; Paul v. Carver, 24 Pa. St. 207; Fearing v. Irwin, 55 N.Y. 486; Hatch v. Railroad Co., 25 Vt. 49; Dill. Mun. Corp. (4th Ed.) � 666. But it is contended that the statute in question is more nearly analogous to those constitutional provisions, which exist in some of the states, that property shall not be taken or damaged for public use without just compensation, and it is urged that where these provisions exist, in some of the states at least, a doctrine has been held which sustains the plaintiff's contention here. Plaintiff's counsel also relies upon decisions of the English courts as sustaining his contention. The English statute provides for compensation to the owner of lands injuriously affected, and it has been held that this entitles one to compensation whose land was permanently diminished in value by an authorized obstruction to a street, although his lot was at a distance from the obstruction. McCarthy v. Board, L. R. 7 C. P. 508, L. R. 7 H. L. 243; Railway Co. v. Walker's Trustees, 7 App. Cas. 299. Mr. Sedgwick, in the eighth edition of his work on Damages, (section 1093,) comments upon these decisions as follows: "The disposition made by the English courts of the question of redress for interference with access from private property to streets and highways is particularly deserving of attention. Under the rule already stated, if the owner had suffered no injury to his right of ownership he would have no right of action in respect of his interest in lands, if there had been no statutory powers; consequently he cannot maintain a claim to compensation under the statute. The claim, therefore, seems to be limited and defined by the right of access. If the access is taken away, or rendered less convenient, and the value of the lands depreciated, even though they do not immediately about on the public highway or river, the plaintiff can recover; but if the obstruction is only temporary, or an inconvenience, diverting the public and causing a loss in custom or trade, the damage, as it would not have given the owner any right of action if there had not been any statutory powers, is not recoverable."

The plaintiff also cites cases in which the construction of a constitutional provision entitling the party to compensation where property is taken or damaged is claimed to be sufficiently broad to include the present case. The cases cited are: Rigney v. City of Chicago, 102 Ill. 64; City of Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820; Gottschalk v. Railroad Co., 14 Neb. 550 16 N.W. 475, and 17 N.W. 120; Railway Co. v. Hazels, (Neb.) 42 N.W. 93; Railroad Co. v. Janecek, 30 Neb. 276, 46 N.W. 478; Harvey v. Railroad Co., (Ga.) 15 S.E. 783; City of Omaha v. Kramer, (Neb.) 41 N.W. 295; Montgomery v. Townsend, 80 Ala. 489; Railroad Co. v. Williamson, 45 Ark. 429; Moore v. City of Atlanta, 70 Ga. 611; Town of Longmont v. Parker, 14 Colo. 386, 23 P. 443. In the case of Town of Longmont v. Parker it was held that, under a constitution providing compensation for lands taken or damaged, a landowner whose means of ingress and egress are interfered with by the construction of a ditch on the highway abutting his land is entitled to recover as damages depreciation of the property because of such ditch,-Richmond, C., dissenting. In Moore v. City of Atlanta it was held that, under a similar constitution, damages resulting to the abutting owner from a change in the grade of a street could be recovered. The same thing was held in Montgomery v. Townsend. In Railroad Co. v. Williamson it was held that the owner of premises abutting upon a street may recover from a railroad company damages resulting to his premises from the construction of a roadbed in its right of way along the street in such a manner as to obstruct access to the premises, though the owner has no interest in the fee. In the case of City of Omaha v. Kramer it was held that the construction of a viaduct on a street upon which the plaintiff's land abutted was such damage as could be recovered for, the court stating that, under the constitutional provision providing that property taken or damaged shall be paid for, the words "or damage" include all actual damage resulting from the exercise of the right of eminent domain which diminishes the market value of private property. The court repudiates the English rule and the rule adopted in Pennsylvania that, under such a provision, no damage can be recovered except such as the plaintiff would be entitled to sue for and recover at the common law if the act had not been authorized by statute. See, as to the English rule, 3 Sedg. Dam. � 1124; the Pennsylvania rule, Railroad Co. v. Marchant, 119 Pa. St. 541, 13 A. 690. In Rigney v. City of Chicago the city constructed a viaduct or bridge along Halsted and across Kinsey streets at their intersection, which was 20 feet west of plaintiff's premises, fronting on Kinsey street. The viaduct in question cut off all communication with Halsted street by way of Kinsey street, except by means of a pair of stairs at the intersection of the streets. Halsted street is one of the main thoroughfares of Chicago, on which is operated a line of horse railway. The evidence showed that the value of plaintiff's lot was largely depreciated. The question is considered at great length, and the majority of the court reach the conclusion that the plaintiff, under the facts stated, is entitled to recover compensation for the injury to his property; the constitution providing that private property shall not be taken or damaged for public use without just compensation. Three members of the court dissented from this opinion,-Justices Scott, Craig, and Sheldon. The supreme court of the United States, in City of Chicago v. Taylor, followed the decision of the state court, and affirmed a recovery by a plaintiff whose property was damaged by the construction of a viaduct on the street abutting the plaintiff's premises. Limitations have been placed upon the rule by the supreme court of Illinois. In City of...