City of Denver v. Bayer

• Decision Date: 21 December 1883
• Citation: 7 Colo. 113,2 P. 6
• Parties: CITY OF DENVER v. BAYER.
• Court: Colorado Supreme Court

2 P. 6

7 Colo. 113

CITY OF DENVER v. BAYER.

Supreme Court of Colorado

December 21, 1883

Appeal from district court of Arapahoe county.

J. P. Brockway, Stallcup, Luthe & Shaffrath J. A. Dawson, and J. A. Stallcup, City Atty. for appellant.

S.E. Brown, for appellee.

HELM J.

Plaintiff below seeks to recover in this action for the obstruction of free ingress and egress to and from his lots by means of the street upon which they front, and for a depreciation in the value of his property caused by the construction and operation upon the street of the railroad mentioned in the pleadings. Three questions are fairly presented for adjudication by the record before us: First. Is the abutting lot-owner in this state entitled to compensation when the adjoining street is occupied by an ordinary railroad, and his property is thereby injured? Second. If he is, did the city of Denver become liable therefor through the action of its council in passing the ordinance recited in the answer? Third. If the adjacent proprietor is entitled to compensation, what is the proper measure of damages by which the same shall be determined?

The abutting lot-owner has a peculiar interest in the street. He has rights therein, not shared by the general public. If the fee thereof be in the municipality, he owns an easement therein. This easement or right, though incorporeal and intangible, often gives the realty whatever value it may be found to possess; without it the land and the improvements thereon may be of little use or benefit; with it they may yield to the owner a handsome revenue. This is especially true of business streets, and business blocks erected thereon. Property in its broader and more appropriate sense, is not alone the chattel or the land itself, but the right to freely possess, use, and alienate the same; and many things are considered property which have no tangible existence, but which are necessary to the satisfactory use and enjoyment of that which is tangible. The people and the courts of Colorado are constantly treating as property the right to a use of water acquired by priority of appropriation; the right of user would, of course, be of no value without the water, but it is this right that is mainly the subject of ownership. Incorporeal hereditaments, particularly those denominated 'easements,' have always been considered property both by the civil and the common law. They are generally attached to things corporeal, and are said 'to issue out of or concern' them; but any wrongful interference therewith has been promptly recognized and punished by the courts.

No good reason is observed for discriminating against the easement in a street connected with the lot of an abutting owner. We are disposed to say that it is property within the meaning of our constitution; and any interference therewith which results in injury to the realty must, with the exceptions hereinafter stated, be justly compensated if in such a case there be no technical taking. 'If private property, there is a damaging thereof within the constitutional inhibition.' Whatever permanently prevents the adjacent owners' free use of the street for ingress or egress to or from his lot, and whatever interference with the street permanently diminishes the value of his premises, is as much a damage to his private property as though some direct physical injury were inflicted thereon. But sometimes these interferences and resulting injury may properly, even in this state, be held to be dammum absque injuria; as where they are occasioned by a reasonable improvement of the street by the proper authority for the greater convenience of the public, or where a mere temporary inconvenience or injury results from a legitimate use thereof by the public.

The streets of a municipal corporation are highways; they are dedicated to the use of the general public, and it has a right therein in the nature of an easement,--a right which is termed an easement by some of the authorities. Whether the fee thereof be in the city or in the adjoining owner this right of the public ordinarily remains the same; if in the former, such fee is generally in trust, for the benefit of the public; if in the latter, it is subject to the right of user or enjoyment by the public for all the ordinary and legitimate purposes of a highway. With us the control thereof is, in either case, vested by law in the municipal government; it is the duty of the city council to protect and improve the same in such manner as will render it most useful for a highway. In determining what changes and improvements are most conducive to this end, the council exercises a large discretion, and unless unreasonable changes are made, or injury results to the adjoining premises through the unskillfulness or negligence of those employed, the owner thereof will not be heard to complain, though, in fact, the real value and convenience of his property are diminished thereby. For in purchasing his lot, or in relinquishing the public easement, he is conclusively presumed to have contemplated this power and authority of the municipal government, and is held to have anticipated any injury to his abutting land resulting from a reasonable and proper exercise thereof. But it must be borne in mind that these presumptions attach only so long as the purpose of the change is to render the street more convenient and useful as a highway. When this object is abandoned, and the council direct or permit a change or use wholly foreign to the ordinary purposes of a highway, and when thereby adjacent property is actually damaged, the owner thereof is, in this state, entitled to reasonable compensation for the injury.

The abutting owner may well be presumed to have taken into consideration the fact that the grade of the street might be raised or lowered; that pavement might be laid and bridges and culverts constructed; and that a street railroad even might be built and operated thereon; and it may fairly be presumed that in purchasing he anticipated and allowed for the possible or probable damages to result from these and similar changes, or that he signified his consent thereto and thus deprived himself of any right to compensation therefor. But no such presumption, consent, or estoppel applies to the use of the street by an ordinary railroad. The argument that such a railroad is an improved public highway, and therefore its construction and operation in the street is only an improved and appropriate use thereof, we do not regard as resting either upon correct principle or sound logic. The street is designed for local convenience and use, and is dedicated thereto; it should be entirely unobstructive, save as temporary obstructions occur in the improvement thereof by the proper authorities or in its legitimate use by the public.

An ordinary railroad is not a local convenience; the city is but one of its termini; its cars do not stop at the beck of any one who may wish to ride, and do not commonly transport passengers from one point to another within the city; its ties and rails, as generally laid, are a permanent interference with the use of the street for ordinary vehicles; the smoke and dust, interruption, and noise produced by operating its trains are a perpetual annoyance, and the danger a constant menace, in the occupation and enjoyment thereof for the usual purposes. We cannot escape the conclusion that such a railroad is an additional burden or servitude not comprehended within the easement for an ordinary public street or highway,--a burden or servitude which the abutting owner cannot be presumed to have anticipated or consented to.

The railroad is a public benefit; it is generally of great advantage to the town or city to or through which it is built and operated. And for any injury or annoyance occasioned thereby which an adjoining owner shares in common with the general public, he ought not to recover; but for those damages which are peculiar to him, which affect his property and impair its value without injuring that of his neighbor, he ought in justice to receive compensation. We are aware that upon some of these questions the courts are by no means in accord Our views conflict with the decisions of courts for whom we entertain the profoundest respect. But, while this want of harmony is to be regretted, it cannot be avoided, for agreement with all the able decisions is impossible. No attempt has been made to review, in this opinion, the cases; the task would be too long and laborious; we have not stated, exhaustively, the reasons controlling the views adopted upon this branch of the case, nor shall we undertake to do so. There are, however, a few subjects and decisions which we feel called upon to more specifically consider.

A distinction has sometimes been made with reference to the fee of the highway. The doctrine is announced and supported by a strong preponderance of authority that if the fee of the street be in the public, or in the municipality for the use of the public, the legislature may authorize it to be used for the construction and operation of a railroad without compensation to the adjoining property-owner, and against his wishes. And of course the legislature may delegate to the municipal authorities power to grant the same privilege, with like immunity from liability to lot-owners along the street occupied. See the following works and the cases cited therein: 2 Dill. Mun. Corp. § 556; Mills, Em. Dom. § 203; Cooley, Const. Lim. (5th Ed.) 687. We are not, as may at first seem, ignoring this doctrine, or necessarily denying its correctness under the law prevailing where it has been declared. A careful examination shows that almost without exception those decisions, which consider the subject and deny a right to...