Carli v. Stillwater Street Railway & Transfer Company
| Decision Date | 27 October 1881 |
| Citation | 10 N.W. 205,28 Minn. 373 |
| Parties | Christopher Carli v. Stillwater Street Railway & Transfer Company |
| Court | Minnesota Supreme Court |
Plaintiff is and has been for many years the owner of certain lots in the city of Stillwater, which abut on Lake St. Croix which is navigable water, and front on Main street. These lots are cut into two parts by an alley, thirty feet wide running parallel to the lake, and the portions between the alley and the shore are valuable for use and are used in connection with navigation, and are approached on the land side by means of the alley. As stated in the opinion, this alley has been in use as a public street for more than fifteen years, and is "made land," having been originally covered by the waters of the lake. The defendant under the authority of an ordinance of the city of Stillwater, has constructed its railroad through this alley, in the manner and for the purposes recited in the opinion, without condemning the same, or making compensation to, or consulting the wishes of plaintiff.
This action was commenced in the district court for Washington county, by plaintiff, to restrain the defendant from maintaining and operating its railroad on such alley, and defendant appeals from the judgment of the court, Crosby, J., presiding, directing that a writ of injunction issue, unless defendant shall at once institute and promptly prosecute condemnation proceedings.
Judgment appealed from affirmed.
McCluer & Marsh, for appellant.
The locus in quo lying below low-water mark in navigable water, and not being made by natural accretion, plaintiff never acquired any title thereto. Benson v. Morrow, 61 Mo. 345; Railroad Company v. Schurmeir, 7 Wall. 272; Barney v. Keokuk, 94 U.S. 324; McManus v. Carmichael, 3 Iowa 1; Bullock v. Wilson, 2 Porter, (Ala.) 436; Brambridge v. Sherlock, 7 Am. Law Reg. 720; Baker v. Lewis, 33 Pa. St. 301; Bowman v. Wathen, 2 McLean, 376; Elder v. Burrus, 6 Humph. 358; Wilson v. Forbes, 2 Devereux, 30; Collins v. Benbury, 3 Ired. 277; Atlee v. Packet Co., 21 Wall. 389; Diedrich v. Northwestern Union Ry. Co., 42 Wis. 248; Shrunk v. Schuylkill Nav. Co., 14 Serg. & Rawle, 71.
The use made by defendant of the alley is no additional servitude, and is consistent with the uses for which the dedication was made. Dillon on Mun. Corp. §§ 565-571, 575; People v. Kerr, 27 N.Y. 188; Hobart v. Milwaukee City R. Co., 27 Wis. 194; Haight v. City of Keokuk, 4 Iowa, 199; Milburn v. City of Cedar Rapids, 12 Iowa 246; Lexington & Ohio R. Co. v. Applegate, 8 Dana, 289; Wolfe v. Covington & Lexington R. Co., 15 B. Mon. 404; Peddicord v. Baltimore, etc., R. Co., 34 Md. 463; 1 Redfield on Railways, 324; Craig v. Rochester City & Brighton R. Co., 39 N.Y. 404, dissenting opinion of Mason, J.
J. N. & I. W. Castle, for respondent.
1. It is the law of this state that the construction and maintenance of an ordinary railroad by legislative authority upon a public street is the imposition of an additional servitude upon the soil, so as to entitle the owner of the servient estate to compensation. Schurmeier v. St. Paul & Paciflc R. Co., 10 Minn. 59 (82;) Winona & St. Peter R. Co. v. Denman, Id. 208 (267;) Gray v. First Division St. Paul & Pacific R. Co., 13 Minn. 315; Harrington v. St. Paul & Sioux City R. Co., 17 Minn. 215; Adams v. Hastings & Dakota R. Co., 18 Minn. 260; Kaiser v. St. Paul, Stillwater & Taylor's Falls R. Co., 22 Minn. 149; Brisbine v. St. Paul & Sioux City R. Co., 23 Minn. 114.
In order to determine whether the case in judgment comes within the authority of these cases, it is requisite to inquire, to some extent, into the grounds upon which they must rest. And in the first place, it is obvious that inasmuch as the public, under the laws of this state, has only an easement in the land dedicated or taken for a public street, the uses to which it may be put by public authority must depend upon the character of that easement. The public use cannot lawfully go beyond, but must be confined within, the purposes for which the easement was granted by or acquired from the original owner of the soil. When a man dedicates to the public land for a highway, street, or alley, he must be supposed to have in view the benefits which will result to his remaining lands from the particular use to which he dedicates it. And when land is taken for a street, the compensation therefor is adjusted with reference to the benefits and injuries which the proprietor of the remaining land will receive and sustain by reason of the opening of the street. And these benefits and injuries will be estimated with reference to the identical use to which the property taken is appropriated.
Bouvier defines a highway as "a passage, road, or street which every citizen has a right to use;" a street as "a public thoroughfare or highway in a city or village." The following definitions by the courts may also be adverted to: By the dedication "the public acquire nothing beyond the mere right of passing and repassing upon the highway, and in all other respects the rights of the original owner remain unimpaired." Williams v. Central R. Co., 16 N.Y. 97. The easement of a highway "embraces all public travel, not prohibited by law, on foot, in carriages, omnibuses, stages, sleighs, or other vehicles, as the wants and habits of the public demand." Elliott v. Fair Haven & W. R. Co., 32 Conn. 579. "The right of the public in a highway consists in the privilege of passage, and such privileges as are annexed as incidents by usage or custom, as the right to make sewers and drains, and lay gas and water pipes." State v. Laverack, 34 N.J.L. 201.
It can hardly be questioned that the primary and fundamental purpose of a public highway, street, or alley is to accommodate the public travel; to afford citizens and strangers an opportunity to pass and repass, on foot or in vehicles, with such movable property as they may have occasion to transport; and every man has the right to use upon the road a conveyance of his own at will, subject to such proper regulations as may be prescribed by authority. In cities custom has sanctioned the use of the streets for sewers, and for water and gas pipes; and it is probable that at no distant day pipes for the transmission of steam for heating and mechanical purposes will be added. It is to be observed that sewers and pipes are laid beneath the surface of the street, so as to be no impediment, after they are laid, to the public travel, and no detriment to the abutting owner. The latter has a peculiar interest in the street somewhat different from that of the general public. He may maintain an action to suppress a nuisance in the street, on the ground of a special injury to himself. It is his right to have free access from his abutting property to the street, and to have the street kept in a condition for its primary and principal use, so as to enable the public readily to gain access to his residence or business; and the value of his property depends largely upon the preservation of this right. The right is, however, subordinate to the public convenience, of which the public authorities having control of the streets are the judge. He cannot, therefore, recover consequential damages occasioned by a change of grade made by the proper authority, unless enabled so to do by statute.
We do not think this easement for public travel is to be limited to the particular modes of travel in use at the time the easement was acquired, but that it extends to and includes all such new and improved methods of travel the utility and general convenience of which may be afterwards discovered or developed, as are in aid of the identical use for which the street was acquired. The regulation and control of highways, streets and alleys, and of the use thereof, for the purposes for which they were created, is in the legislature, and it is well settled that this power of control may be delegated to and reposed in the municipal corporations within which the streets are situated; but it follows, from what has been said, that the...
To continue reading
Request your trial