Frankle v. Jackson

• Decision Date: 07 March 1887
• Citation: 30 F. 398
• Parties: FRANKLE v. JACKSON, Receiver, etc.
• Court: U.S. District Court — District of Colorado

30 F. 398

FRANKLE v. JACKSON, Receiver, etc.

United States Circuit Court, D. Colorado.

March 7, 1887

Browne & Putnam, for plaintiff.

E. O Wolcott, for defendant.

BREWER J.

This case is submitted on demurrer to the second and third counts of the answer. In her complaint, plaintiff alleges that since January 1, 1879, she has been the owner of certain lots on the corner of Fifteenth and Wynkoop streets, in Denver, on which, in that year, she built and has since kept a hotel. She further alleges that prior to 1879 the Denver & Rio Grande Railway Company entered upon said Wynkoop street, and laid down a railroad track, and that in 1880 it also laid down a side track between the main track and the sidewalk and on the side of the street adjacent to her property, and that this was done without her consent, and without compensation; that the said company used this side track for standing cars, and loading and unloading coal at all hours of the day and night, converting that portion of the street into a coal-yard. She also alleges that this continued until July 1884, when the defendant was appointed receiver of said railway company by this court, and took possession of all its property, and that he has since continued to use side track and side track in the same manner. The second count in the answer pleads that the railway company entered upon the street in 1871, and constructed, and since, up to the time of the appointment of defendant as receiver, used the main track under the authority of an ordinance of the city of Denver. The third count pleads that in 1882 the railway company entered upon the street under like authority, and constructed the side track.

The question presented by the demurrers is whether the facts alleged disclose a cause of action continuous in its nature, and therefore giving each day a new action, or one single in its nature, and arising solely and fully at the time of the first entry and occupation of the street. I had occasion, when on the supreme bench of Kansas, to examine, in connection with my then associates, this question in several cases and in many aspects, and I shall therefore do no more now than state my conclusions, and refer to those cases.

(1) Where, under the constitution and laws of a state, compensation is limited to 'property taken,' and does not cover 'property damaged,' and the fee of the street is not in the adjacent lot-owner, the mere use of the street by a railroad company, when authorized by law, for the laying down of a track, and the running of trains, gives no cause of action to the lot-owner, although consequential injuries may result to him therefrom. The interference with the free use of the street he suffers in common with all, pro bono publico, although he may suffer more than others. Railroad Co. v. Garside, 10 Kan. 552, and cases cited.

(2) Where, however, as in this state, 'property damages' is within the constitutional guaranty of compensation, then any lot-owner, the value of whose lot is diminished by the laying of a railroad track and the running of trains in a street in front thereof, may have an action for such damages. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6.

(3) In all cases in which a cause of action may exist, and in which it springs solely from the laying down of the track, and the subsequent running of trains in an ordinary, proper, and lawful manner, there is but a single cause of action; it involves, for the purpose of determining the compensation the question of a diminution in value of the lot caused by the construction of the railroad; it arises at the time of the occupation of the street by the railroad company; and it is...