Gilbert v. Greeley, S.L. & P. Ry. Co.

• Decision Date: 06 December 1889
• Citation: 22 P. 814,13 Colo. 501
• Parties: GILBERT v. GREELEY, S. L. & P. RY. CO.
• Court: Colorado Supreme Court

22 P. 814

13 Colo. 501

GILBERT v. GREELEY, S. L. & P. RY. CO.

Supreme Court of Colorado

December 6, 1889

Appeal from district court, Boulder county.

This action was brought by Richard Gilbert, plaintiff, against the Greeley, Salt Lake & Pacific Railway Company, defendant, to recover damages occasioned to the premises of plaintiff by the construction and operation of defendant's railroad. The cause was tried in the district court without a jury, by stipulation, upon an agreed statement of facts, as follows 'It is agreed that defendant is a railroad corporation and incorporated for the purpose of building and operaing a railroad which should run from Greeley, Colorado, to the town of Boulder, up Penn gulch, and westward thereof; that its road was built into the town of Boulder in the year A. D 1881, and that by an ordinance or license of the town of Boulder, said town of Boulder being then and there an incorporated town, the said defendant was authorized and permitted to run its road, and lay down its track, through and along Water street, in said city, from a distance of several hundred feet below and east of Twelfth street, in the said town of Boulder, past and across Twelfth street westward; that the main line of said road thus running up Water street, which said Water street runs at right angles to Thirteenth and Twelfth streets, crosses Twelfth street at a distance of about 200 feet from the premises of said plaintiff, hereinafter referred to; that at or near Thirteenth street, a distance of about 400 feet east of Twelfth street, the said defendant has constructed a side track or switch which departs from the main line at an angle and runs westerly from said main line and across Thirteenth and Twelfth streets, in said town of Boulder, and that said side track or switch is situate upon lands owned by the said defendant, from, at, or near said Thirteenth street, up to said Twelfth street, and is also extended westerly beyond Twelfth street, on the lands of said defendant; that the depot of the said defendant is situated a few hundred feet above Twelfth street; that the lots of said city at that place are laid out and numbered, in the plat of the town, so as to be of the width of fifty feet each on Front street, and running back from said Front street, south or southerly, to a depth of 140 feet, to an alley, which runs throughout the whole of the block parallel to Front street, and at right angles to said Twelfth street; that at the date of the construction of said defendant's road, in 1881, the said plaintiff was the owner of lots 5 and 6, in block 42, in said town of Boulder; that said lots are situate upon the north-west corner of block No. 42, (and are) each of the width of fifty feet on Front street, with a depth of one hundred and forty feet, to an alley; and that said lots lying on a corner, the depth of the outside lot is along, and forms the boundary to, said Twelfth street for its entire depth, 140 feet, so that, while the lots are laid out and numbered and referred to as situate on Front street, yet the whole depth of one of these lots runs along, and is situate on east side of Twelfth street; that at the time the road was constructed there was, and ever since has been, thereon a two-story brick dwelling-house of 16 rooms, fronting upon said Twelfth street, and situate upon the south half of lots 5 and 6, running east and west; that, in constructing its side track or switch, as before stated, defendant placed the same at a distance of about 28 feet south of the line of said plaintiff's property, and that between said plaintiff's line and the lot of the said defendant, upon which its side track is situate, is an alley twenty feet in width, and the same heretofore referred to as running through the entire block 42, the defendant's track being, at the place where it crosses Twelfth street, and the northerly rail thereof, about eight feet south of the north boundary of the lot owned by the defendant, and twenty-eight feet south of the south line of plaintiff's lot on said alley; that, in the use of its side track and switch, the defendant uses it to switch cars across Twelfth street, which causes obstruction to the streets, and thus renders said plaintiff's property less valuable; and that he has thus suffered damages. There is no claim that defendant has been guilty of negligence in operating its side track, but the damages claimed are for the usual and ordinary operation of said side track, and not for anything special or unusual in thus operating its side track. It is further agreed that defendant has also been allowed and licensed by the said town of Boulder to run across Twelfth street, both with its main track and with said side track, but that plaintiff was never asked for and never did consent to the laying down of said track across said Twelfth street.' By another stipulation, it was agreed what the damages should be, in case the court, under the law and upon the facts set forth in the agreed statement, should find that the plaintiff has a cause of action for more than nominal damages; right of appeal being reserved to either party. The finding and judgment of the court were in favor of defendant. Plaintiff appeals, under the act of 1885.

Syllabus by the Court

1. Under article 11, § 15, Const. Colo., private property must be taken, or private property must be damaged, before a cause of action arises. The damage must be to the property or its appurtenances; or it must affect some right or interest which the owner enjoys in connection with the property, not shared or enjoyed by the public generally. The damage must differ in kind, not merely in degree.

2. It is only when some specific private property, or some right or interest therein or incident thereto, peculiar to the owner, is taken or damaged for public or private use that the constitution guaranties compensation therefor.

3. One traveler has no more legal ground of complaint on account of an obstruction in the public highway than others, unless he be entitled to use the highway at the point of such obstruction for a different purpose than other people, or has suffered some special injury therefrom. The fact that he may be more frequently inconvenienced thereby does not give a cause of action.

R. H. Whitely, for appellant.

Teller & Orahood, for appellee.

ELLIOTT, J., ( after stating the facts as above.)

The matters requiring consideration in this case appear somewhat complicated at first, though they are really quite simple. In general terms, they may be stated thus: A railroad company lawfully constructs and operates its road, without negligence, in the immediate vicinity of private real property, but without touching the same. It builds and operates the road across a public street upon which such real property is situate, though not in front of the same, and thereby causes obstruction to the street by passing trains, and thus renders such property less valuable. Under such circumstances, has the owner of the property a cause of action against the railroad company for the damages thus occasioned?

Before considering the legal aspects of this question, let us take a further survey of the premises. The main line of defendant's road runs through Water street, about 200 feet distant from the plaintiff's property. Between the main line and plaintiff's property lies the south half of block 42, which is the private property of defendant, through which defendant's side track runs. Plaintiff's property consists of a piece of land 140 feet in length by 100 feet in width, situate in the north half of block 42 being the north-west corner of said block, and is bounded on the north by Front street, on the west by Twelfth street, and on the south by the alley separating the north half of block 42 from the south half. The streets are 80 feet in width, and the alley 20 feet. Plaintiff's house is situate upon his premises adjoining the alley, and fronts on Twelfth street. The main line of defendant's road and also the side track cross Twelfth street; the former 200 feet south of plaintiff's premises, and the latter 28 feet south. From this it appears that the streets and the alley bordering on plaintiff's premises, and by which he gains access thereto, are entirely unobstructed. The corpus of his property is not affected by any physical contact with the railroad tracks, nor is any street or alley, so far as the same borders on his premises, in...