J., M. & I. R. R. Co., &C. v. Esterle
| Decision Date | 10 April 1878 |
| Citation | 76 Ky. 667 |
| Court | Kentucky Court of Appeals |
| Parties | Jeffersonville, Madison & Indianapolis R. R. Co., &c. v. Esterle. |
Appellee insists that this is an action of trespass quare clausum fregit. We do not so understand it. The gravamen of his complaint is, that as the owner of a house and lot in the city of Louisville, situated on Fourteenth Street, he has suffered damage by the entry of appellants on that street, the laying down by them of three several railway tracks, and the movement of cars over and along those tracks by locomotives propelled by steam. He does not aver that he had, or was entitled to the actual possession of the street when the appellants entered, nor that he has, at any time since the commencement of the alleged wrongs, been entitled to such possession.
By the rules of the common law, trespass quare clausum fregit could not be maintained, except by a person having the actual possession of the locus in quo, and even by our statutory modifications of those rules, the party complaining must at the least have legal seisin. (Beebe v. Hutchinson, 17 B. Mon. 498.) And it is proper here to say, that we have not been able to find that the act of March 10, 1854 (Sess. Acts 1853-4, p. 167), was in terms or substance continued in force by the General Statutes.
Appellee claims that he was seized in fee of a "certain lot of land lying and situate on the west side of Fourteenth Street, . . . . extending along the line of said street;" also that the street "was many years ago dedicated as a highway for the use and benefit of all the citizens of the state, and more especially to the owners and occupiers of the contiguous lands; that the fee was not conveyed to the said city of Louisville or the state of Kentucky, but that only an easement — a right of way — was granted to be exercised in the usual mode that streets in a large and populous city were used at the time of said dedication, giving free ingress and egress, and passage for persons on foot, and for such vehicles as then were used in transporting persons or property along said street, or such as might be deemed appropriate for that purpose without materially injuring the property of the land-holders, or unreasonably obstructing or injuriously impairing their right to the use of said street as an elemental part of their property in their contiguous lands, and an incorporeal hereditament annexed thereto."
He sets out in detail and at great length the inconveniences and annoyances resulting from the occupation of the street, and the movement of trains of cars over and along the railway tracks, and avers that the walls of his house have been cracked by the shaking caused by the rapid running of heavy trains, and that the smoke, cinders, and burning sparks thrown from the engines, are emptied into his house through the windows and doors, and "says that by reason of said nuisances and said appropriation of said street, and said obstruction of the ingress to and egress from his said property, and the running of the said trains in the manner aforesaid, and by the smoke and sparks aforesaid, and by reason of all the circumstances above stated and described, that the said property of the said plaintiff has greatly diminished in value, and he says that the diminution in value of his said property adjacent to said street as aforesaid, occasioned by all the said circumstances, is three thousand dollars, and the said plaintiff says, that he has been and still is damaged by said nuisances, appropriations, and circumstances, to the amount of $3,000," and he prays judgment for that sum.
It may be conceded for the purposes of this case, that there is nothing in the record to show that the public owns the fee in the land upon which the street is located, and that the presumption is, that the fee to the center of the street is in the owners of the adjacent and abutting lots of land. (Trustees of Hawesville v. Lander, 8 Bush, 679.)
But the exclusive use of the street is in the public, and the owners of the abutting lots have and can have no possession, or right to the possession, in fact or in law, of the street or any portion of it. An unlawful entry on the street is in no sense an entry on the possession of those lot-owners. The unreasonable appropriation of the street may amount to an obstruction of their right to its use as a means of ingress to and egress from their lots, but from the very nature of things can not amount to an injury to their possession. Whatever may be the rule as to the relative rights of the public and the owners of the fee in ordinary highways to which the exclusive use and possession may not be absolutely necessary for the purposes of the public, there can be no question that in "a large and populous city" there can be no such right as that of a joint possession by the owners of the fee with the public in the the streets. The owners of the fee may maintain actions against third persons for injuries to the reversion, and are entitled to the minerals under the surface of the ground, and to any profits that may spring from such portions of an ordinary highway as are not in actual use by the public; but these facts do not militate against the conclusion first stated. The municipal authorities of cities and towns are charged with the duty of keeping the streets free from obstructions, and are invested with the exclusive right to control them. The owners of the fee are as completely subordinated to the superior rights of the municipality to control, manage, and possess its streets, as the public in general. The owner of a lot fronting on a particular street has a peculiar interest in that street. His title carries with it as an essential incident certain valuable and indispensable services and easements in and over that street, which are as inviolable as his property in the lot itself. (Railroad Co. v. Applegate, 8...
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