Grand Rapids & I.R. Co. v. Heisel
| Decision Date | 11 January 1882 |
| Citation | 11 N.W. 212,47 Mich. 393 |
| Parties | GRAND RAPIDS & INDIANA R. CO. v. HEISEL. |
| Court | Michigan Supreme Court |
The dedication of a street to the public does not authorize it to be used for an ordinary railroad track; and the municipal representatives cannot authorize it to be so used without compensation to adjacent owners.
Those who have dedicated or platted lands and sold lots on streets or other public spaces cannot thereafter withdraw or change the use of them to their grantee's detriment and the destruction of their rights on the streets or public grounds on which their lots abut.
Any entirely unauthorized interference with any recognized right whatever, is a good ground of action.
Where a railroad track has been laid in a public street without authority to use the street for that purpose, any adjacent proprietor who has not consented to such use is entitled to damages for such injury as he may have suffered in consequence thereof.
It is for a jury to determine the damages to an adjacent proprietor from the malicious and unnecessary operation of a railroad in the public street.
An abutting owner who sues for damages resulting from the operation of a railroad in the public street is entitled to show such damages as would have been properly open to consideration by a jury of inquest empanelled to assess compensation upon the condemnation of the street for that purpose.
Adequate compensation for injury is such only as puts the party injured in as good condition as he would have been in if the injury had not been inflicted: the wrong-doer cannot throw any portion of an actual and appreciable loss on the injured party.
Adequate compensation for land actually taken under proceedings for its condemnation includes its value or the amount to which the value of the property from which it is taken is depreciated. Where the injury affects the rental value or enjoyment, the same principle applies.
Where a railroad company occupies a public street without proceedings for its condemnation, its occupancy is a continuous wrong to abutting owners, who may recover the amount of damages accruing year by year.
The Michigan statute for the condemnation of lands to the use of a railway company does not empower a party aggrieved by its unauthorized occupancy of land to resort to the statutory remedy of appraisal for compensation, but he has a right of action in the ordinary way. Until the proper body has passed upon the necessity for the railway the question of compensation by statutory appraisal cannot arise.
Adjacent owners injured by a public nuisance to the highway can sue for and recover such special damages as they can prove.
Reduction in rental value is a recognized element of annual damage in all cases of injuries to abutting owners from the misuse of highways.
The unauthorized occupancy of a highway by a railroad company for its track is actionable if any actual damage ensues to adjacent owners, whether indictable or not.
The value of premises for dwelling purposes is a question of fact, in an action for injury to the owner from the unauthorized use of an adjacent highway by a railroad company.
Where a railroad company illegally appropriates a street to its use an abutting owner may recover for damages distinct from the illegal taking, such as those resulting from the operation of the road.
M.J. Smiley, for plaintiff in error.
H.E Thompson, for defendant in error.
Mrs Heisel sued the railroad company for damages by reason of injury to her occupancy of certain premises owned by her on which she lives within the city of Grand Rapids. The land is used for dwelling-house purposes, containing a dwelling and outhouses, at the corner of Second and West Division streets being 100 feet on each of those streets. Most of the neighboring property is used for various business purposes. The railroad which is the source of the injury is laid on West Division street, and by means of a main and a side track occupies the portion of the street adjacent to her lot so as to leave little if any available space outside of the tracks.
This case was before this court at the October term of 1877 and decided in January, 1878. G.R. & I.R. Co. v. Heisel, 38 Mich. 62. On that occasion several points were passed upon which narrowed the controversy on the trial now under review, and left very little to be disputed except the questions touching damage to rights of occupancy, so that the jury have now only given damages for that, during the six years prior to suit--assessing them at $350, or a little less than $60 a year.
Upon the former trial she had been allowed to recover on the basis that she owned the fee of the land actually covered by the tracks, but it was our opinion that the peculiar language of her deed excluded the presumption that it went beyond the street lines, and therefore that she was not entitled to be compensated as owner for the taking of her land, but must be confined to such damages as would affect her as adjacent occupant and proprietor.
It appears from this record that Mrs. Heisel's title was obtained in 1867, before the railroad was built, and that she built on and occupied the lot in 1869 and moved into her house in 1870, after the main track but before the side track was built. Evidence was given tending to show injuries to the wall of her house, and annoyances of various kinds from smoke, cinders, steam and noise, and obstruction of the way, and testimony was put in concerning the effect on rental value. There was more or less evidence on both sides bearing upon the value and suitableness of the property for dwelling-house purposes. Most of the assignments of error relate to the charge of the court--a few, however, going to rulings on testimony.
As the case is now presented there does not appear to have been authority from any one for the occupancy of the street until 1873, when the city of Grand Rapids seems to have consented to the occupancy of the east half of the street, but no consent was obtained from and no damages assessed to all of the adjacent occupants. A considerable part of the errors assigned rest on the claim that Mrs. Heisel, by reason of not owning the fee of the street occupied by the railroads, is cut off from any claim for substantial damages, and is not concerned with the lawfulness or unlawfulness of the use of the highway. Nevertheless as this is in our judgment material, and was so declared in our previous decision, it is necessary to refer to it.
We held in our previous decision that the use for an ordinary railway of a public street was not within the dedication. It must necessarily follow that the representatives of the public cannot give away what does not belong to the public, and such has been the law recognized in this state from the beginning and is clearly expounded in Cooper v. Alden, Harr. Ch. 72, when the action of the common council of Detroit in granting power to occupy a street for such purposes, without the consent of the adjacent owners, was held unlawful. In that case the owners set up no title in the bed of the street, although they may have owned it, and the case was decided upon the rights of adjacent ownership and occupancy. In that case, and in this, the right of the legislature to authorize such use did not come in question, for no such authority was shown to occupy the street in question.
It has been quite as well settled that the persons who have dedicated or platted lands and sold lots on streets or other public spaces, cannot thereafter withdraw or change the use of such public spaces to the detriment of their grantees, and the destruction of their rights in the street or public grounds on which their lots abut. Sinclair v. Comstock, Harr. 404; Smith v. Lock, 18 Mich 56; White v. Smith, 37 Mich. 291. Previous to 1873 the general railroad law contained no authority for the use of streets if they could be used at all, without...
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