Chi., K. & N. Ry. Co. v. Hazels

• Decision Date: 17 April 1889
• Citation: 26 Neb. 364,42 N.W. 93
• Parties: CHICAGO, K. & N. RY. CO. v. HAZELS.
• Court: Nebraska Supreme Court

26 Neb. 364

42 N.W. 93

CHICAGO, K. & N. RY. CO.

v.HAZELS.

Supreme Court of Nebraska.

April 17, 1889.

Syllabus by the Court.

1. Where town lots abut upon a street, along which a railroad is constructed, so near as to cause an embankment in the street, upon either side of the lot, so as to deprive the lot-owner of the free use of the streets adjacent to and abutting on the lot, the lot being thereby depreciated in value, to the damage of the owner, he may recover his damages from the railroad company, even though no part of the lot be taken, and no part of the street in front thereof be occupied by the railroad.¹

2. “The words ‘or damage,’ in section 21, art. 1, of the constitution, include all damages arising from the exercise of the right of eminent domain which causes a diminution in the value of private property.” City of Omaha v. Kramer, 41 N. W. Rep. 295.

3. For the purpose of arriving at the diminution of the value of real estate damaged by the construction of a railroad, in estimating the value of the property after the construction of such road, it is proper to take into consideration all elements of damage caused by such construction which tend to diminish the value of the property.

4. In an action for damages resulting to private property from the construction of a railroad near such property, the defendant answered that the plaintiff had been paid for all damages sustained by reason of the construction of the railroad through the county where the property was situated, and, upon a trial, during the taking of the testimony of the defendant's right of way agent, the defendant offered in evidence a voucher and receipt for the money paid, which was for the right of way through other property; the witness testifying that at the time of the execution of the receipt no claim had been made for the damages involved in the suit then on trial, and therefore the damages were not included in the voucher and receipt. The plaintiff in rebuttal testified substantially to the same thing, and defendant, after plaintiff's evidence was closed, recalled its witness, for the purpose of proving that when the plaintiff signed the receipt he knew the purport thereof, which testimony, upon objection, was excluded. Held no error.

Error to district court, Pawnee county; APPELGET, Judge.

Stephen S. Brown and Humphrey & Lindsay, for plaintiff in error.

A. H. Babcock and J. K. Goudy, for defendant in error.

REESE, C. J.

This action was instituted in the district court of Pawnee county by defendant in error, and against plaintiff in error, to recover damages alleged to have been sustained by defendant in error to the north half of block 35, in that part of Pawnee City known as “North Pawnee City,” by the construction of plaintiff's railroad along the north side of Third street, which is abutting on and north of defendant's property. The trial resulted in a verdict and judgment in favor of defendant in error. Plaintiff in error seeks review by proceedings in error.

It appears from the evidence that the railroad was constructed on and along the south half of blocks 12, 29, 30, and 31, which had been purchased by plaintiff in error. The south half of block 30 lies immediately north of and across Third street from the property of defendant in error. On this half block is located plaintiff's depot. Practically the whole of the half blocks referred to are occupied by main and side tracks of plaintiff's road. The tracks are laid upon a fill, which varies in height from the natural surface of the ground to about 9 feet from the east side of block 30 to the west side of block 12. The line of road and tracks cross Sheridan street, which is immediately to the west of plaintiff's property on the south side of Third street, and between blocks 29 and 30 on the north side of said Third street, and across Sherman street, which is immediately east of plaintiff's property, and between blocks 30 and 31. The distance from the north line of Third street to the road-bed where plaintiff's road crosses Sheridan and Sherman streets is very slight; not more than a few feet. Immediately to the west of plaintiff's property, but on the north side of Third street, the fill extends into Third street. At the crossing of Third and Lincoln streets, which is three blocks east from defendant's property, plaintiff's road turns to the south, and crosses Third street upon a fill. At the crossing of Grant street, which is one block east from defendant's property, there is a cut of perhaps about 15 feet in depth, and over which is constructed a bridge along Grant street, which extends into Third street, the approaches to which are graded to a height of perhaps 9 or 10 feet, and which extends across Third street, thus substantially closing that street one block east from plaintiff's property. Sherman street, adjoining defendant's property to the east, and Sheridan street upon the west, are practically closed by the grade and tracks crossing them immediately upon the north side of Third street. Defendant's outlet from his property is substantially limited to the south by way of Sherman and Sheridan streets, upon his east and west, and to the west by the way of Third street, which, as we have seen, is partly occupied by plaintiff's road-bed. By this it will be seen that no part of Third street immediately north of defendant's property is occupied by plaintiff's road; that the line of road is constructed along the south half of the blocks named upon plaintiff's own property, obtained by it by purchase, and not by condemnation, except as to the crossing of Rose street between blocks 10 and 11, Walnut street between 11 and 12, Chestnut street between 12 and 29, Sheridan street between 29 and 30, Sherman street between 30 and 31, Grant street between 31 and 32, and Seminary street between 32 and block 4 in Hollingshead's addition.

Under these conditions, it is insisted by plaintiff in error that defendant in error cannot recover damages, the contention being that “The defendant railroad company is not liable for any injury to the premises in question produced by the lawful and proper construction and operation of its railroad on its own land, on the north side of Third street.” Upon this point counsel for plaintiff in error have presented a very able and elaborate brief, which was supplemented by a logical argument, in which substantially if not quite all of the authorities both in England and this country were carefully considered. We have examined the authorities cited, and trust we will be excused from reviewing them, as, in our opinion, the whole question presented has been virtually disposed of by our own decisions, under the provision of our constitution, which is that “the property of no person shall be taken or damaged for public use without just compensation therefor.” This provision of the constitution has been considered with more or less care in Gottschalk v. Railroad Co., 14 Neb. 550, 16 N. W. Rep. 475;Railroad Co. v. Reinhackle, 15 Neb. 279, 18 N. W. Rep. 69; Railroad v. Rogers, 16 Neb. 117, 19 N. W. Rep. 603; Railroad v. Fellers, 16 Neb. 169, 20 N. W. Rep. 217;City of Omaha v. Kramer, 41 N. W. Rep. 295, and other cases which we need not cite. Much stress is placed upon the fact that plaintiff purchased the parts of blocks along the north side of Third street over which its line of road runs, instead of obtaining the same by the exercise of the right of eminent domain. We cannot conceive that this can make any difference. It could not purchase the streets across which its line runs, and its occupancy thereof cannot be so based. The exercise of the right of eminent domain is limited to cases wherein a purchase cannot be made, or where the owner of the real estate refuses to grant the right of way through or over his premises. Section 97, c. 16, Comp. St.; Railroad Co. v. Gerrard, 17 Neb. 587, 24 N. W. Rep. 279. The right to occupy public streets is based upon a similar provision of the statute. Section 83, c. 16, Comp. St. Railroad corporations have the right, therefore, to take and use real estate for right of way purposes with or without the consent of the owner thereof. They also have the right to occupy roads, streets, alleys, or public grounds of any kind by the consent of the municipal or other corporation, or public officers or authorities, or, on failing to obtain such consent, by the right of eminent domain. Under this right, and under the restrictions contained in section 8, art. 11, of the constitution, plaintiff in error, by lawful authority, not only occupies the portions of the blocks referred to, but its crossing of Third, Lincoln, Seminary, Grant, Sherman, Sheridan, Chestnut, Walnut, and Rose streets.

It seems to be the contention of plaintiff in error that, by the occupation of the lots and parts of blocks it has purchased, it is placed upon the same footing as a private owner of property, and therefore has the right to make use of its own property as it may see fit, so long as it does not create thereon a public nuisance; and therefore, if an injury was suffered, it is damnum absque injuria. To this we cannot agree. We cannot consent to base defendant's right to recover upon the simple method adopted by plaintiff in procuring its right of way. Had it been anything else than a railroad company, the owner of any single lot along its track could have declined to sell his lot, and thereby prevented its construction, but, owing to the fact that plaintiff was a railroad corporation, this right on the part of the lot-owner did not exist. Can it be said, then, that, because the lot-owners consented to sell their lots, plaintiff could purchase, and thus defeat the right of adjoining property owners to maintain their action for damages? Such, to our minds, would be indeed a novel conclusion. So far as this inquiry is concerned, it must be conceded that the property of plaintiff has been...