Harrison v. Denver City Tramway Co.

• Decision Date: 07 April 1913
• Citation: 54 Colo. 593,131 P. 409
• Parties: HARRISON v. DENVER CITY TRAMWAY CO.
• Court: Colorado Supreme Court

131 P. 409

54 Colo. 593

HARRISON v. DENVER CITY TRAMWAY CO.

Supreme Court of Colorado, En Banc.

April 7, 1913

Error to District Court, City and County of Denver; Hubert L Shattuck, Judge.

Action by J. Henry Harrison, administrator of Mary V. Macon deceased, against the Denver City Tramway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

R. T. McNeal, of Denver, for plaintiff in error.

Gerald Hughes and Howard S. Robertson, both of Denver, for defendant in error.

WHITE J.

December 9, 1907, Mary V. Macon brought suit against the Denver City Tramway Company for damages claimed to have been sustained as a result of injury to her residence property. The complaint, as amended, alleges, in substance that since November, 1890, the plaintiff has owned and been in possession of two described lots at the corner of Ogden street and Eleventh avenue, in the city and county of Denver, together with a 2 1/2 story brick dwellinghouse of 14 rooms, situate thereon, and occupied by her as a residence; that prior to certain acts of defendant hereinafter set forth the plaintiff's property was of great value as a dwelling, and the location thereof one of the most desirable in the city; that Ogden street extends in a northerly and southerly direction, and is 30 feet wide between the curbs in front of plaintiff's residence; that Eleventh avenue extends in an easterly and westerly direction; that for 10 years prior to 1907 the defendant, under a franchise from the city, operated a double-track electric street car line from the business section of the city on Eleventh avenue to its intersection with Ogden street; thence on Ogden street north by curves to Twelfth avenue; thence east to Fillmore street; that in the summer of 1907 the defendant, under its franchise, extended its Eleventh avenue car line from Fillmore street 15 blocks eastward, and connected the same with its Fairmount line, and, over the protest of plaintiff, likewise constructed an additional line from its southerly track on Eleventh avenue by a sharp curve into and upon Ogden street to Ninth avenue; thence easterly and then northerly through Downing street to Eleventh avenue, and thence west to an intersection with its tracks at Eleventh avenue and Ogden street; that in front of plaintiff's residence the west rail of defendant's tracks on Ogden street is 13 feet at its most remote point from the curb, and at its least remote point 3 feet therefrom; that the cars upon said track pass within about 35 feet of the front of plaintiff's residence, while the cars on Eleventh avenue pass within about 40 feet of the north line thereof; that since the construction of the extended and additional lines defendant has run, and continues to run, its electric cars past plaintiff's house over such tracks at the rate of 40 cars per hour; that prior to the construction of such additional lines south through Ogden street visitors and others wishing to approach plaintiff's residence by carriage, automobile, or other vehicles were accustomed to alight and leave their vehicles in safety in front of her residence; that subsequently thereto they have been deprived of such privilege by the frequency with which cars are operated upon said tracks, and are compelled to alight at the rear entrance on Eleventh avenue or elsewhere than at the sidewalk in front of her residence; that the frequent passage of cars over the curves of the tracks makes a loud, grinding, shrill, and nerve-racking noise, and jars the building and creates almost a constant rumbling, disturbing sound, accompanied by the ringing and clanging of alarm bells and danger signals; that it is thereby made impossible the greater protion of the time for inmates of her home, or visitors therein, to conduct on the veranda or in the front rooms conversation in an ordinary tone of voice, or enjoy any form of social intercourse or entertainment during the day or evening, or enjoy undisturbed sleep at night, or occupy the house with any degree of comfort or quietude; that by reason of such things the rental and selling value of her property has been greatly depreciated to the plaintiff's damage, etc. A demurrer to the amended complaint was sustained and the plaintiff brings the cause here for review. The demurrer inter alia challenged the sufficiency of the facts stated to constitute a cause of action.

Section 11 of article 15 of the Constitution inhibits the construction of a street railroad in any city without the consent of the local authorities having control of its streets. Section 5420, R. S. 1908, re-enacts, in effect, the constitutional provision, and further declares substantially that the consent upon the part of a city of the construction of a street railroad therein shall not operate to relieve or protect those constructing the road, etc., 'against any claim for damages to private property, which otherwise, without such consent, might be lawfully maintained against' the persons constructing the road. Section 15 of article 2 of the Constitution declares 'that private property shall not be taken or damaged, for public or private use, without just compensation.' Under these provisions of the law, damages to private property by whomsoever caused and for whatsoever purpose must be paid; and the defendant, though armed and protected by the power of eminent domain, must respond to plaintiff, if in the construction of its road it has taken or damaged her property. However, neither the constitutional inhibition against the construction of a street railroad in a city, without the consent of the local authorities, nor the consent of the municipality to the construction of defendant's road, enlarged or lessened the rights of plaintiff. Her rights depend solely upon whether her property has been taken or damaged. The constitutional inhibition recognizes the right of cities to control their streets, while the statutory provision makes it certain, as between municipalities and those constructing street railroads therein, that the latter shall make compensation for private property taken or damaged in the construction of such public works. In other words, as to the liability for compensation for private property taken or damaged, those constructing the road stand in the place of the city. So in the case at bar. If the city of Denver had constructed and operated the road in question in the same place and manner as has the defendant, and no cause of action arose thereby against the municipality and in favor of plaintiff, none has arisen in her favor by reason of the construction and operation of the road by defendant.

A physical taking of plaintiff's property was not essential to a cause of action in her favor, but physical damage thereto, as contradistinguished from personal annoyance or inconvenience, was. It must appear that plaintiff had some right in, user of, or interest pertaining to the property which has been wholly or partially destroyed before she can maintain a cause of action for damages to her property. The right disturbed may be either public or private, but it must be a right which she enjoyed in connection with her property, and which gave to it an additional value, and without which, or as affected by the disturbance, the property itself is damaged. The disturbance of the right or easement may be at a distance from the property injured, but the interference must be with some right held with regard to that property. As said in Gilbert v. Greeley S. L. & P. Ry. Co., 13 Colo. 501, 506, 22 P. 814, 815: '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, and which is not shared with or enjoyed by the public generally.' The injury sustained must be damages to her property, not incidental injuries arising from a careful exercise of legal rights by defendant in a manner that does not invade the legal rights of plaintiff. The principle expressed in the phrase 'damnum absque injuria' has not been repealed. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6; Denver Cir. R. Co. v. Nestor, 10 Colo. 403, 15 P. 714. For annoyance and inconvenience to owners of private property arising from the lawful and reasonable acts of another, or the lawful and reasonable use by another, without negligence and without malice, of that which is his, no matter how seriously such acts may depreciate the market price of adjoining property, the owner thereof is without remedy. The fundamental law gives a remedy for private property taken or damaged by requiring payment therefor, but does not extend that remedy to include compensation for personal annoyance and inconvenience suffered by reason of the proper and reasonable operation of either public works or private enterprises.

Moreover it is certain from our decisions that a municipality in this state may use or authorize its streets to be used for all ordinary and necessary uses to which city streets are usually subjected, and to such further local uses and means of conveyance as the lawmaking power may have authorized for the streets and thoroughfares of the entire city, and that incidental injuries arising from a careful exercise of those rights are damnum absque injuria; but as to extraordinary or unusual uses or anreasonable changes in the street no such immunity exists. City of Denver v. Bayer, supra; City of Denver v. Vernia, 8 Colo. 399, 8 P. 656; Denver Cir. R. Co. v. Nestor, supra; D. & S. F. R. Co. v. Domke, 11 Colo. 247, 17 P. 777; Gilbert v. G. S. L. & P. L. R. Co., supra; Pueblo v. Strait, 20 Colo. 13, 36 P. 789...