Hastings & Grand Island R. R. Co. v. Ingalls

• Decision Date: 09 October 1883
• Citation: 16 N.W. 762,15 Neb. 123
• Parties: HASTINGS AND GRAND ISLAND R. R. CO., PLAINTIFF IN ERROR, v. CHARLES C. INGALLS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

16 N.W. 762

15 Neb. 123

HASTINGS AND GRAND ISLAND R. R. CO., PLAINTIFF IN ERROR, v. CHARLES C. INGALLS, DEFENDANT IN ERROR

Supreme Court of Nebraska

October 9, 1883

ERROR to the district court for Adams county. Tried below before GASLIN, J.

Affirmed.

John Doniphan and Batty & Ragan, for plaintiff in error, contended that the law authorized the building of the road along the highway. Gen. Stat., 187, 188; that such occupation by a railroad is a legitimate use thereof and the legislature could grant this power. Murphy v. Chicago, 29 Ill 279. Hinchman v. Patterson, 17 New Jersey Eq., 75. Milbourn v. City, 12 Iowa 246. Clinton v. Cedar Rapids, 24 Id., 455. On subject of additional burthen cited: Cooley Const. Lim., 555. Barney v. Keokuk, 4 Dillon, 593. Attorney General v. Railroad, 125 Mass. 515. Hobart v. Railroad, 27 Wis. 194. West v. Bancroft, 32 Vt. 367. Kelsey v. King, 32 Barb., 410. Railroad Company v. Applegate, 8 Dana, 289. Elliot v. Railroad, 32 Conn. 579. Ingalls cannot recover. Heutz v. R. R., 13 Barb., 646. Davdison v. R. R., 3 Cush., 91. Railroad v Allen, 39 Ill. 206. Central Railroad v. Heltfield, 5 Dutcher, 206. Mills on Eminent Domain, §§ 146, 160. Roud v. Townshend, 26 Vermont, 670. Thurston v. Portland, 2 J. J. Marsh, 73. Peoria R. R. v. Bryant, 57 Ill. 473.

Brown & Ryan Brothers, for defendant in error, reviewed the authorities cited by plaintiff seriatim, contending that they were not applicable to sustain its position; thus the case of Hinchman v. Patterson, 17 N.J.Eq. 75, says that it is settled law of that state that "a railroad company, authorized to acquire land for the use of their road by condemnation and required to make payment or tender of compensation before occupying the land, cannot construct their road across or upon a highway without making compensation to the owner of the soil occupied by the highway." This principle is fully sustained by the cases of Railroad v. Heisel, 38 Mich. 62. Trustees of Presbyterian Society v. The Auburn & Rochester R. R. Co., 3 Hill, 567. Williams v. Railroad, 16 New York, 97. Wagner v. Railroad, 25 New York, 526. See also Cooley Const. Lim., 255. On right of Ingalls to recover, cited: Civil Code, § 319. Reading R. R. v. Boyer, 13 Penn. State, 497. Cain v. Railroad, 54 Iowa 262. Robbins v. Railroad, 6 Wis. 610. Field on Damages, § 737. Ingram v. Railroad Company, 38 Iowa 669. Proprietor of Locks v. Corporation, 10 Cush., 385.

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

OPINION

MAXWELL, J.

In 1879 the defendant in error, Ingalls, commenced an action against the plaintiff in error to recover damages, by reason of the location and construction of the plaintiff's railroad in the public road, on lands which the defendant had purchased and was in possession of, but had not fully paid for.

On the trial of the cause a verdict for $ 500 was given in favor of Ingalls, upon which judgment was rendered. The cause of action is set forth in the petition as follows:

"And the plaintiff further says, that on the west side of the land above described for the distance of one mile there is a public highway, sixty-six feet wide, the east half of which said highway is on the lands of this plaintiff, and this plaintiff owns the east half of said highway subject to the right of way of the public to pass and repass thereon in the usual carriages and conveyances ordinarily used by the public in traveling along the public highways.

"And this plaintiff further says, that the south portion of the land above described lies adjacent to the city of Hastings, lying immediately west of said tract of land, and is only separated therefrom by the highway aforesaid

"And plaintiff further says, that prior to the grievances hereinafter mentioned, said land was very valuable by reason of its location adjacent to said city and also by reason of said highway, which was used by a large number of the traveling public in going to and from said city of Hastings.

"And plaintiff further says, that the defendant wholly disregarded the plaintiff's rights in the premises, wrongfully and without any legal authority whatever did, on or about the 16th day of September, A.D. 1879, lay the track of its said railroad along and upon the east side of said highway, throughout the whole distance where said highway passes along the west side of the plaintiff's premises as above described, so that the whole of the defendant's railroad track rests upon that portion of the said highway which passes over the lands of this plaintiff; and that the said defendant is now and for several months last past has been running its trains of cars along and upon the said highway and on the lands of the plaintiff as aforesaid."

A motion for a new trial was filed by both parties and overruled, the grounds assigned in the plaintiff's motion are in substance: First. That the damages are excessive. Second . Error in the assessment. Third. That the verdict is not sustained by sufficient evidence. Fourth. Errors of law occurring at the trial.

Numerous objections are made to certain of the jurors, who it is claimed were biased against the plaintiff. No objection of the kind was made in the motion for a new trial, and it cannot now be considered.

I. The plaintiff claims to have obtained the right of way from the county commissioners of Adams county, paying them therefor the sum of $ 450; that by reason of such grant of the right of way Ingalls is precluded from maintaining an action, the wrong being of the kind for which the law provides no remedy; that the land in question having been taken for a public road, the legislature and proper public authorities may apply it to any public use they may see fit. The decisions are conflicting upon this question.

In Williams v. New York Cent. Railway, 18 Barb. 222-246, it is said: "A railroad is only an improved highway, and the use of the street by a railway is one of the modes of enjoying a public easement." In that case the statute authorized the railroad company to intersect and build their road upon any public highway. The decision of the supreme court was reversed in the court of appeals (16 N.Y. 97), where it was held that the appropriation of a highway by a railroad company was the imposition of an additional burden upon and a taking of the property of the owner of the fee within the meaning of the constitutional provision, which forbids such taking without compensation.

In the case of the Pres. Society v. The Auburn & Roch. R. Co., 3 Hill 567, the action was for trespass for entering upon the plaintiff's premises, digging up the soil and constructing a railroad track upon it. The defense was that the locus in quo was a public highway, and the charter of the corporation expressly authorized it to construct its road upon and across any highway. The court held that the legislature had no power to authorize the company to enter upon and appropriate the land in question for purposes other than those to which it had been originally dedicated in pursuance of the highway act, without first providing "a just compensation therefor." This decision, so far as we are aware, has never been overruled in that state.

In the late case of Story v. New York Elevated Railway Company, 15 Cent. Law Journal, 391, it was held by the court of appeals of New York that the erection of an elevated railway in a street is inconsistent with its use as a street, and constitutes such an appropriation of the adjoining lot owner's easement of the passage as is forbidden by the constitutional inhibition of the taking of private property for public purposes without compensation.

In Williams v. Nat. B. P. R. Co., 21 Mo. 580, the court held that the grant of the right of locating a plank road upon a country road did not preclude the owner of the soil on which the plank road was built from recovering compensation.

These cases seem to be founded upon justice, and meet our approval. In cases holding a contrary view it is said that a steam railway is an improved public highway, and is no additional burden upon the land. But this view cannot be sustained. It is true that a railway for the transportation of all persons who may desire, upon payment of fare, to be carried in the cars of the company, that mode of travel being exclusive, is a highway. But it is not a common highway in the ordinary sense of the term nor in the ordinary mode of travel. A canal is also a highway, but no one would contend that the corporation constructing a canal could appropriate a public road without compensation to the owner of the land. We have no doubt the construction of a railroad upon a public road is an additional burden upon the land, for which the owner is entitled to compensation.

II. The legal title to the land in question at the time of the location of the railroad was in the Union Pacific Railway Company, and the proof shows that Ingalls was in default in his...