Gottschalk v. The C. B. & Q. R. R. Co.

• Decision Date: 01 August 1883
• Citation: 16 N.W. 475,14 Neb. 550
• Parties: MARGARET GOTTSCHALK, PLAINTIFF IN ERROR, v. THE C., B. & Q. R. R., DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

16 N.W. 475

14 Neb. 550

MARGARET GOTTSCHALK, PLAINTIFF IN ERROR, v. THE C., B. & Q. R. R., DEFENDANT IN ERROR

Supreme Court of Nebraska

August 1, 1883

ERROR to the district court of Platte county. Heard below before GEORGE W. POST, J.

REVERSED AND REMANDED.

W. S Geer, for plaintiff in error, cited: Southern P. R. R. v Reed, 41 Cal. 256. Lockland v. R. R. Co., 3 Mo 180. Brady v. DesMoines & Fort Dodge R. R., 10 N. W. R., 754. G. R. & I. R. R. Co. v. Heizel, 38 Mich. 71. Dillon on Mun. Corp., 3d Ed., § 274.

A. M. Post (with Marquett & Deweese), for defendant in error, cited: Dillon on Mun. Corp., 576. Milburn v. Cedar Rapids, 12 Iowa 246. Barney v. Keokuk, 94 U.S. 340. Ind. R. R. Co. v. Hartley, 67 Ill. 439. A. & N. R. R. v. Gaviede, 10 Kan. 552. Mercer v. R. R. Co., 35 Pa. 99. Brooklyn v. Railroad, 47 N.Y. 475.

MAXWELL, J. COBB, J., concurred. LAKE, CH. J., dissenting.

OPINION

MAXWELL, J.

The plaintiff is the owner of certain lots in block 83 in the city of Columbus, which abut upon the alley running through said block. The defendant, in pursuance of authority from the mayor and council, located and constructed a railroad in said alley, by reason of which the plaintiff claims that the lot in question is damaged or diminished in value in the sum of $ 475, and this action was brought to recover the same. The cause was referred by consent to a referee, who found as follows:

First. That the plaintiff is the owner of fractional lots 7 and 8, in block 83, in the city of Columbus, Platte county, Nebraska; that she acquired title on the first day of June, 1861, and has ever since been in possession by herself or tenant.

Second. That said fractional lots abut upon the alley and street in question in this action.

Third. That the city of Columbus, Platte county, Nebraska, is a city of the second class.

Fourth. That in January, 1857, the plat of the village of Columbus was duly laid off, acknowledged by the proprietor, filed, and recorded in the office of the county clerk of said Platte county, Nebraska, which plat included the parcels of ground in question, said plat showing the various streets and alleys therein, including the street and alley described in plaintiff's petition.

Fifth. That said city of Columbus is the successor of the village of Columbus.

Sixth. That the Lincoln & Northwestern Railroad Company, an incorporation duly organized under the laws of the state of Nebraska, constructed a line of railroad into said city of Columbus.

Seventh. That the city of Columbus, by an ordinance duly adopted, authorized said incorporation to construct its side track across said street and along said alley in question in front and alongside of the property of plaintiff.

Eighth. That said ordinance contained a provision as follows: "The Lincoln & Northwestern Railroad Company shall be liable to pay all damages to private property which may be sustained by reason of this ordinance."

Ninth. That in pursuance of said ordinance, said Lincoln & Northwestern Railroad Company did construct its side track across said street and along said alley in question, and in front and alongside of the said property of plaintiff, and that it has been built and maintained since August 1st, 1880.

Tenth. That the Lincoln & Northwestern Railroad Company has leased said railroad, including said side track, for 999 years to the Burlington & Missouri River Railroad in Nebraska, an incorporation duly incorporated under the laws of the state of Nebraska, and said Burlington & Missouri River Railroad Company in Nebraska has consolidated with the defendant, a foreign corporation.

Eleventh. That the defendant is and was at the trial and of the bringing of this action maintaining and operating said railroad and side track.

Twelfth. That plaintiff offered evidence to prove that she had sustained damages in the manner and in the amount as stated in her petition.

Thirteenth. Defendant admits that it is liable in this action to the same extent as the Lincoln & Northwestern Railroad Company would be liable had not said lease been made.

CONCLUSIONS OF LAW.

First. That the title to the fee of said street and alley in question is in the said city of Columbus.

Second. That the said city of Columbus had the authority to authorize said railroad company to build and maintain its said track across said street and along said alley.

Third. That the provisions of said ordinance, so far as the same relate to the street and alley in question, do not vacate said street and alley.

Fourth. That the provisions of said ordinance do not enlarge the common law rights of plaintiff to damages or compensation.

Fifth. That plaintiff is not entitled to recover compensation for the damages stated in the petition.

Sixth. That judgment in this action should be rendered in favor of defendant for costs.

The report was confirmed by the district court and the cause dismissed.

The petition sets forth certain damages which the plaintiff claims to have sustained by reason of the construction and operation of the road.

The defendant contends that as it had lawful authority from the city council to construct its road in the alley in question, therefore it is not liable, and as there is no direct physical injury to the plaintiff's property shown, she cannot recover.

The title to streets and alleys in this state vests in the public. Sec. 83 of the corporation law, provides that, "if it shall be necessary in the location of any part of any railroad to occupy any road, street, alley, or public way or ground of any kind, or any part thereof, it shall be competent for municipal or other corporation or public officer or public authorities, owning or having charge thereof, and the railroad company to agree upon the manner and upon the terms and conditions upon which the same may be used or occupied, and if said parties shall be unable to agree thereon, and it shall be necessary in the judgment of the directors of such railroad company to use or occupy such road, street, alley, or other public way or ground, such company may appropriate so much of the same as may be necessary for the purpose of such road, in the same manner and upon the same terms as is provided for the appropriation of the property of individuals by the eighty-first section of this chapter." Comp. Stat., 146.

Sec. 21, Art. I. of the constitution of 1875, provides that, "the property of no person shall be taken or damaged for public use without just compensation therefor."

The constitution of Illinois contains a similar provision, and its proper construction was before the supreme court of that state in Rigney v. City of Chicago, 102 Ill. 64.

In that case it appears that Rigney was the owner of a lot twenty-five feet in width and 100 feet in depth, fronting on Kinzie street, in the city of Chicago. On the front part of this lot there was a two- story frame dwelling. In 1874 the city constructed a viaduct along Halstead street and across Kinzie at their intersection, about 220 feet west of the plaintiff's premises. In consequence of the construction of the viaduct all communication with Halstead street was cut off except by means of stairs, and the rental value of the plaintiff's property was reduced from $ 60 per month to $ 23, and the property itself from $ 5,000 at the time of the erection of the obstruction to one-third of that amount after the construction. The court below directed a verdict for the city. There was no claim that Rigney's possession had been disturbed or that any direct physical injury had been done to his premises by reason of the obstruction complained of. The grounds upon which recovery was sought were, that the city by obstructing the plaintiff's communication with Halstead street by way of Kinzie street had deprived him of a public right which he enjoyed in connection with his property, and thereby inflicted upon him an injury in excess of that shared by him with the public at large, the action being brought to recover the excess. The action in this case is brought for the same cause. The case cited, therefore, is directly in point. The opinion contains an elaborate review of the authorities and particularly of the Illinois cases. It is there said:

"Under the constitution of 1848 it was essential to a right of recovery, as we have already seen, that there should be a direct physical injury to the corpus or subject of the property, such as overflowing it, casting sparks or cinders upon it, and the like; but under the present constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which by the common law would, in the absence of any constitutional or statutory provisions, give a right of action.

"As opposed to this view, appellee cites: Chicago, Burlington & Quincy R. R. Co. v. McGinnis, 79 Ill. 269. The facts of this case arose before the new constitution, and consequently its construction was not involved in it; besides there is nothing said in it that militates against the view here expressed, but on the contrary, so far as that case has any application to the one before us, sustains it.

"The case of Stetson v. The Chicago & Evanston R. R. Co. 75 Ill. 74, is relied on for the same purpose. The question presented by that case was, whether, where a railroad company under authority from a city has located its track upon a public street, a bill in equity will lie at the suit of any owner of lots abutting on the street to restrain the company from operating its road until the damages claimed to have been done to the lots by reason of the construction and operation of the railway are ascertained and...