Gottschalk v. Chi., B. & Q. R. R.

• Decision Date: 25 October 1883
• Citation: 14 Neb. 561,17 N.W. 120
• Court: Nebraska Supreme Court
• Parties: GOTTSCHALK v. CHICAGO, B. & Q. R. R.

14 Neb. 561

17 N.W. 120

GOTTSCHALK

v.CHICAGO, B. & Q. R. R.

Supreme Court of Nebraska.

Filed October 25, 1883.

LAKE, C. J.

For several reasons, which I will briefly give, it is impossible for me to unite in the opinion announced in this case by the majority of the court.

My first objection to the opinion is that it completely ignores one of the principal questions presented by the record for our decision, viz., that as to the proper rule of damages between an abutting lot-owner and a railroad company for laying and operating a railroad within a street of a city. It leaves one-half of the case really undecided. The matter of complaint is stated in the petition in two counts or causes of action,--one for obstructing a street, and the other for obstructing an alley upon which the lots in question abut, by the defendant's railroad. No allusion is made in the opinion to the incumbrance of the street, and whether the rule applied to that of the alley is to govern is left entirely to conjecture. As this question will necessarily again arise on a new trial, the court below ought, I think, to have been advised as to whether its former ruling in that particular is also open to objection.This silence respecting it, whether so intended or otherwise, is well calculated to leave the impression that it is not. For myself, however, I desire to say that where, as is the case in this state, the fee of alleys, as well as of streets, in a city is in the corporation for the use of the public, I am aware of no case in which any distinction in this respect has been recognized. The same principle, I think, should govern as to both.

The chief fault, however, that I find with the opinion of my brethren is that while it lays down a rule which may perhaps find reasonable support in the authorities they cite, the case as made by the record is not within it. Indeed, I take upon me to say that they cite no case of which it can fairly be said that, upon the facts of this one, the court deciding it would have sustained a recovery of damages. The gravamen of the complaint here is that the defendant's railroad track, on which it is running its cars, is laid across a street, and along an alley of the city, adjoining the plaintiff's lots, which are thereby damaged.

Admitting all this to be true, I think it is clear, by the light of authorities, that the plaintiff's case is fairly within the rule of damnum absque injuria. It seems to be conceded by my associates, and doubtless it is true, that, but for the provision of our constitution which secures to owners of property simply “damaged”--not taken--for public use, just compensation, the road having been constructed under legislative authority, there would be no right of action for the act complained of. Where there is no permanent taking away of any portion of a street, but only the mere obstruction of passing trains to the temporary inconvenience of those wishing to use it, this is not such an element of damage to an adjoining estate as will authorize recovery. Caledonian R. Co. v. Ogilvy, 2 Macq. H. L. Cas. 229.

My associates concede, also, that the right to compensation given by our constitution is not at all unlike that secured by the sixty-eighth section of the lands clauses consolidation act, and the sixth section of the railway clauses consolidation act of the English parliament, where lands are injuriously affected by a railroad. Therefore, the adjudged application of those sections by the higher English courts ought, I think, to have great weight with us in determining the full scope and effect to be given to section 21 of our bill of rights. One prominent feature of the English decisions under those statutes is that, to justify a recovery, the damage must be one for which an action would lie, if the work causing it were not authorized by parliament.

In the case of Beckett v. Midland Ry. Co. L. R. 3 C. P. 82, which may he regarded as a leading one on this subject, the principal question was as to whether certain premises fronting on a street through which the company had built its road, were injuriously affected, within the meaning of the English statute. Although the facts of that case were held sufficient to make the company liable, it is quite clear to my mind, from what was said by the judges in applying the law to them, that those of the one we are considering are not. In that case the roadway in front of the plaintiff's premises, which had formerly been 50 feet wide, was reduced by the embankment for the railroad to 33 feet, in consequence of which the light in the lower portion of the house had been sensibly diminished, and great discomfort and inconvenience occasioned to the occupants by reason of carriages being compelled to go a considerable distance beyond the gate before they could turn.

As to 17 feet of the roadway, the occupancy by the company in consequence of the elevation of the railroad track was exclusive. In thus permanently diminishing the light, and rendering the approach inconvenient, a special injury was done to the plaintiff's property; and it was upon this ground that the recovery was sustained. WELLS, J., in giving his views, said that to entitle the claimant to compensation “two things must concur, viz., that he has sustained a particular damage from the execution by the company of the works authorized by the special act, and that the damage was one for which he might have maintained an action if the work was not authorized by parliament.” And he said, also, “that the injury he complains of was an injury to his estate, and not a mere obstruction or inconvenience to him personally,...