Hyde v. Minn.
| Decision Date | 07 May 1912 |
| Citation | 29 S.D. 220,136 N.W. 92 |
| Court | South Dakota Supreme Court |
| Parties | CHARLES L. HYDE, Plaintiff and appellant, v. MINNESOTA, DAKOTA & PACIFIC RAILWAY COMPANY et al., Defendant and Respondents. |
This action was brought to recover damages which plaintiff alleged he had suffered through the acts of defendants. Upon the trial before, the circuit court and jury, defendants objected to the introduction of any evidence under the complaint, basing their objection upon the ground that such complaint did not state facts constituting a cause of action. The objection was sustained, and verdict for defendants directed. Judgment having been rendered upon such verdict, plaintiff appealed to this court, and in his brief states:
The cause has been presented to this court, both by the briefs and oral arguments, as though it were an appeal from an order sustaining a demurrer to the complaint when such demurrer had been interposed before answer, and it will be so treated by this court.
The facts which such demurrer would admit are, in substance, as follows: Plaintiff is the owner of numerous lots in a row of blocks running east and west within, but at the extreme southern end of the city of Aberdeen. There is no highway on the south side of such blocks, but there is a street along the north side thereof, and there are streets between such blocks, which last-mentioned streets originally extended, without interruption, to the north through said city. The defendants acquired the row of blocks next north of the row where plaintiff's property is situate, and, entering said city from the southeast with their right of way, defendants entered upon such row of blocks acquired by them, and used the same for a railroad right of way running westerly across the south end of such city. Defendants used no part of the street adjoining plaintiff's property on the north, but did cross all the streets running north from plaintiff's property, and closed two of such streets where the same crossed their right of way. There were at least two streets east of and parallel to, and two streets west of and parallel to, those closed, which were not closed by such right of way, and the street running east and west along the north side of plaintiff's property connected with all of said open streets. It does not appear that there are any structures upon plaintiff's property. The defendants have constructed a line of railroad, depot grounds, coal bins, water tanks, depot, and engine house upon the row of blocks owned by them; their exact location as relates to the property of plaintiff not appearing.
This is not an action asking equitable relief by way of injunction; and, while the plaintiff, in one paragraph of his complaint, has set forth many sources of alleged injury, the only allegations of said complaint upon which he predicates his claim for money damages are those found in paragraph "XI" of such complaint. We must therefore disregard all such matters as are not pleaded as ground's for the recovery of the judgment asked for.
Paragraph "XI" of the complaint reads as follows:
It will thus be seen that plaintiff's claim for damages is based upon the location, construction, maintenance, and operation of the line of road and switchyards, such operation causing smoke, dust, noise and trembling of the earth, and upon the closing of the streets to the north of, but not adjacent to, plaintiff's property.
We shall not attempt to harmonize the views advanced in the almost numberless decisions wherein the questions presented by this appeal have been discussed. All that we shall strive to do is to call attention to what we deem certain. basic propositions which seem to have been frequently rejected or overlooked, and then determine the principles that should control under the facts presented by the complaint. From the reading of appellant's brief, it is apparent that he bases his right of recovery upon the use of the words "or damaged" in section 13, art. 6, of the Constitution of this state, which section reads:
"Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained and before possession is taken. ..."
From the reading of many of the decisions, it would seem that the courts have frequently held that the right of action to recover damages rested upon constitutional provisions similar to the above. Such holdings are certainly erroneous. We would cite the reader hereof to the excellent discussion found in a case from a state having no constitutional provision whatsoever, and would like to quote the opinion in full if space permitted. Staton v. Norfolk & Carolina R. Co., 111 N.C. 278, 16 S.E. 181, 17 L.R.A. 838. See, also, notes in 17 L.R.A. 838-842.
The history of the right to recover for the taking or damaging property under the power of eminent domain like the history of such power itself, extends back long prior to our Constitutions, either federal or state. The power of eminent domain is an inherent right vested in sovereignty as a necessary attribute thereof, but long before the founding of the American Colonies it had become thoroughly established, as part of the English law, that it was unlawful to take the property of an individual for even a public use without making due compensation therefor. The taking of private property without compensation must have been especially repugnant to a people such as those who founded our present government--the very corner stone of which is the equality of men before the law. We find that some of the courts have held that, even where there was no constitutional inhibition, the Legislature had no power to take private property for public use without just compensation. See cases cited in the Staton case, supra. The framers of the federal Constitution did not even. think it necessary to place therein any guaranty of this right to recover damages, thus showing that this right was fully recognized. The guaranty will be found in the fifth amendment. Very few of the colonies had any such guaranty in their fundamental laws, and most of them had none until long after statehood, while one, North Carolina, has never seen fit to place such a guaranty in her Constitution. Sooner or later the sovereign authority, the people, protected themselves from any attempt upon the part of their Legislatures to deprive them of their right to recompense by enacting the several constitutional provisions now in force. In the early days these constitutional provisions only guaranteed reimbursement in case of a taking of property, and the result was that some of the courts, construing the word "property" in its narrow sense as the "thing" owned, rather than giving to it the broader and truer meaning of, "the exclusive right to possess, enjoy, and dispose of a thing" (Webster's New International Dictionary), held that there was no provision against the mere damaging of the thing which was the subject of property, but that one could recover only when there was an actual "taking of the thing." See Thompson v. Androscoggin River Improvement Co., 54 N. H. 545, and case of Eaton v. Railroad Co., 51 N.H. 504, 12 Am.Rep. 147, wherein, as well as in the Staton case, supra, clear discussions of the results flowing from the misconstruction of the word "property" are found.
The cases holding to this narrow construction of the word "property," and holding that no recovery could be had under a Constitutional provision guaranteeing recompense only where there had been a "taking" of the thing, were clearly in error, both in giving too narrow a meaning to the word "property" and also in holding that the right of recovery rested upon the Constitution rather than upon the common law or upon an inherent right superior to any legislative enactment. The result of these decisions. was that many of the states amended their Constitutions by inserting therein the words "or damaged" or equivalent words, making them read, in effect, the same as the provision of our Constitution above quoted. The...
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