Burlington & M. R. R. Co. v. Reinhackle

• Decision Date: 18 December 1883
• Citation: 15 Neb. 279,18 N.W. 69
• Parties: BURLINGTON & M. R. R. CO. v. REINHACKLE.
• Court: Nebraska Supreme Court

15 Neb. 279

18 N.W. 69

BURLINGTON & M. R. R. CO.

v.REINHACKLE.

Supreme Court of Nebraska.

Filed December 18, 1883.

Error from Cass county.

Marquette & Deweese, for plaintiff.

A. Beeson, for defendant.

MAXWELL, J.

In the year 1858 the defendant purchased lot 3, in block 47, in the city of Plattsmouth, said lot fronting east on Second street, in said city. He thereupon erected a dwelling-house on said lot, in which his family has resided from that time until the present. Second street, the testimony shows, is 70 feet in width. About the year 1870 the plaintiff herein erected machine-shops on its own land, abutting on the east side of said street immediately opposite the defendant's premises, and obtained leave from the proper city authorities to erect a fence on the east side of said street, inclosing a small portion of the same. In 1877 the machine-shops were destroyed by fire, and new ones erected at a point in the southern or south-eastern portion of the city, some distance from the defendant's premises. The company thereupon applied for and obtained leave from the city authorities to use the east side of said street for the purpose of laying tracks thereon and using the same for railroad purposes. In pursuance of this authority the company laid two tracks on the east side of said street, immediately opposite the defendant's premises, and extending for a considerable distance north and south, occupying about 30 feet in width of said street. The western track, near the middle of the street, is used for the purpose of loading and unloading goods on and from the cars and is constantly nearly filled with cars to be loaded or unloaded. And the street is further obstructed by teams bringing or carrying away goods therefrom. These facts are undisputed. In February, 1881, the defendant commenced an action against the plaintiff in error in the district court of Cass county to recover damages to his property caused by laying said tracks and the obstruction of the street, the date of the injury being alleged to be July 1, 1877. Issues were joined and a trial had, in which the jury returned a verdict for the defendant for $500. A motion for a new trial having been overruled, judgment was entered on the verdict.

The first error assigned by the plaintiff in its brief is, that the fee of the street being in the city and not in the adjoining lot-owner, he has no remedy where a sufficient portion of the street is left for the use of the public. The testimony tends to show that the property in question at the time of the alleged injury was worth from $800 to $1,500, and that it was depreciated in value about one-half by the obstructions complained of. The fee of streets is in the public; but it is held in trust for public use. The municipal corporation cannot sell or permanently obstruct the streets without compensation to the owners of property specially injured thereby. The trust, like any other, must be exercised in good faith. It was created to give permanency to streets, and apply them wholly to the use of the public. But, in addition to the public benefit, every lot-owner whose lots abut on a street...