Jaynes v. Omaha Street Railway Company

• Decision Date: 02 February 1898
• Docket Number: 5370
• Parties: MINNIE L. JAYNES v. OMAHA STREET RAILWAY COMPANY
• Court: Nebraska Supreme Court

74 N.W. 67

53 Neb. 631

MINNIE L. JAYNES v. OMAHA STREET RAILWAY COMPANY

No. 5370

Supreme Court of Nebraska

February 2, 1898

ERROR from the district court of Douglas county. Tried below before IRVINE, J. Reversed.

REVERSED AND REMANDED.

H. C Brome and Brome, Andrews & Sheean, for plaintiff in error:

Whenever the location, construction, and use of a public improvement occasion a direct disturbance of a physical right which the owner enjoys in connection with his property, and the result of such interference is to lessen the market value of the property, then that property is damaged within the meaning of our constitution and the owner entitled to compensation commensurate with the injury sustained. (Gottschalk v Chicago, B. & Q. R. Co., 14 Neb. 550; Rigney v. City of Chicago, 102 Ill. 64; City of Pekin v Winkel, 77 Ill. 56; City of Pekin v. Brereton, 67 Ill. 477; City of Elgin v. Eaton, 83 Ill. 535; City of Shawneetown v. Mason, 82 Ill. 337; Stock v. City of East St. Louis, 85 Ill. 377; Chamberlain v. West End of London & C. P. R. Co., 2 Best & S. [Eng.] 605; Beckett v. Midland R. Co., 3 Common Pleas L. R. [Eng.] 81; Mollandin v. Union P. R. Co., 14 F. 394; Republican V. R. Co. v. Fellers, 16 Neb. 169; Chicago, K. & N. R. Co. v. Hazels, 26 Neb. 364; Omaha & N. P. R. Co. v. Janecek, 30 Neb. 276; Reardon v. City and County of San Francisco, 66 Cal. 492; City of Denver v. Bayer, 7 Colo. 113; City of Montgomery v. Maddox, 89 Ala. 181; Omaha H. R. Co. v. Cable Tram-Way Co., 32 F. 727; City of East St. Louis v. O'Flynn, 119 Ill. 200; City of Denver v. Vernia, 8 Colo. 399; Hogan v. Central P. R. Co., 71 Cal. 83; Town of Longmont v. Parker, 14 Colo. 386; Gainesville, H. & W. R. Co. v. Hall, 14 S.W. 259.)

Use and occupation of a public street or highway by an electric street railway with its poles, wires, and tracks were not contemplated or authorized by the original dedication of the street to the public, and if such use and occupation decrease the market value of adjacent lots by a physical interference with the use and enjoyment of the streets by the owner in connection with his property, then his property is "damaged" within the meaning of that word in our constitution, and he is entitled to compensation. (Southern P. R. Co. v. Reed, 41 Cal. 256; Imlay v. Union B. R. Co., 26 Conn. 249; South Carolina R. Co. v. Steiner, 44 Ga. 546; Cox v. Louisville, N. A. & C. R. Co., 48 Ind. 178; Indianapolis, B. & W. R. Co. v. Hartley, 67 Ill. 439; Phipps v. Western M. R. Co., 66 Md. 319; Grand Rapids & I. R. Co. v. Heisel, 47 Mich. 393; Chamberlain v. Elizabeth Cordage Co., 41 N.J.Eq. 43; Lawrence R. Co. v. Williams, 35 O. St. 168; Carl v. Sheboygan & F. DuL. R. Co., 46 Wis. 625; Hastings & G. I. R. Co. v. Ingalls, 15 Neb. 123; Burlington & M. R. R. Co. v. Reinhackle, 15 Neb. 279.)

John L. Webster, contra:

The construction or operation of a street railway along the streets cannot be made the foundation of an action for damages by an abutting property owner. (Taggart v. Newport S. R. Co., 19 A. [R. I.] 326, 7 L. R. A. 205; Williams v. City Electric Street R. Co., 41 F. 556; Halsey v. Rapid Transit S. R. Co., 20 A. [N. J.] 859; Koch v. North Avenue R. Co., 15 L. R. A. [Md.] 377; Texas & P. R. Co. v. Rosedale Street R. Co., 64 Tex. 80.)

The construction and operation of a street railway do not cast any additional servitude upon the street, and a railway company is not liable to the abutting property owner for damages arising from the construction and operation of the road. (Attorney General v. Metropolitan R. Co., 125 Mass. 515; Fulton v. Short Route Railway Transfer Co., 85 Ky. 640; Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62; Briggs v. Lewiston & A. H. R. Co., 79 Me. 363; Hobart v. Milwaukee City R. Co., 27 Wis. 194; Elliott v. Fair Haven & W. R. Co., 32 Conn. 579; Citizens Coach Co. v. Camden Horse R. Co., 33 N.J.Eq. 267; Carson v. Central R. Co., 35 Cal. 325; Newell v. Minneapolis, L. & M. R. Co., 35 Minn. 112; Kellinger v. Forty-second Street & G. S. F. R. Co., 50 N.Y. 206; Finch v. Riverside & A. R. Co., 25 P. 765 [Cal.].)

RAGAN, C. IRVINE, C., not sitting. RYAN, C. concurring.

OPINION

The opinion contains a statement of the case.

RAGAN, C.

Minnie L. Jaynes brought this suit in the district court of Douglas county against the Omaha Street Railway Company, hereinafter called the railway company, a corporation organized under the laws of the state and owning and operating an electric street railway in the streets of the city of Omaha by permission of the city's authority. Jaynes in her petition alleged, among other things, that she was the owner of lot 8, in block 15, in R. V. Smith's Addition to the city of Omaha; that said lot was a tract of land 243 feet in length east and west and 66 feet in width north and south that it was bounded on the east by Sixteenth street and on the south by Clarke street; that the railway company had constructed its railway over and upon and along the surface of said Sixteenth and Clarke streets in front of her property, and was operating its cars thereon, the motive power being electricity; that the railway company, for the purpose of so operating its cars, had erected poles on either side of said streets adjacent to her premises, and placed a wire upon said poles parallel to the railway track, and had strung wires across said streets on said poles; that by reason of such construction and operation of said railway on said tracks adjacent to said premises the value of the latter had been greatly depreciated; that the location of the poles and wires of the railway company in said streets interfered with Jaynes' ingress to and from her property, and thereby depreciated its value. There was a prayer for a judgment for damages. To this petition the railway company filed a general demurrer, based on its contention that the petition did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer and dismissed the petition and Jaynes brings that judgment here for review on error.

1. By sections 104, 105, and 106, article 1, chapter 14, Compiled Statutes 1897, it is made the duty of every original owner or proprietor of any tract of land who shall subdivide the same for the purpose of laying it out in an addition to a city to cause a plat of such subdivision to be made with reference to known or permanent monuments, and in such plat give the dimensions and the courses of all streets and alleys established thereby, and to execute and acknowledge this plat before some officer authorized to take acknowledgments of deeds, and when so executed, to file such plat for record in the office of the register of deeds of the proper county. The acknowledgment and record of such an instrument are equivalent to a deed in fee-simple of such portion of the premises platted as is on such plat set apart for streets and other public purposes. Assuming that Smith was the original owner of the lands out of which the lots of Jaynes were carved, that he complied with the statute just quoted and thereby dedicated these streets to the public and thereby conveyed the fee-simple title of these streets to the city of Omaha, we have the question, for what purpose was this dedication or grant made? The particular purposes which were in the mind of the owner at the time he made this dedication or grant are not expressed therein; and the question therefore is, for what purpose does the law imply or presume the owner granted these streets to the public? Is the construction and operation of such an electric railway as the one here on the surface of these streets embraced in the purposes for which the original owner dedicated these streets to the public? Or, in the language of the law books, is the construction and operation of this street railway an additional burden or servitude on the easement granted?

It is said by Booth, in section 83 of his work on Street Railways, that the courts of last resort of the country to which the question has been presented have all decided that the construction and operation of such a street railway as the one in question here was not an additional servitude to those embraced in the original grant. The courts referred to by this author are Kentucky, Michigan, Maryland, New Jersey, Pennsylvania, Rhode Island, Utah, and the United States circuit court for the district of Arkansas. We shall briefly examine these cases.

The Kentucky case was decided in 1893 and is the Louisville Bagging Mfg. Co. v. Central P. R. Co., 95 Ky. 50, 4 Am. Electrical Cases 202, 23 S.W. 592. It was an application for an injunction by the owner of a lot fronting on a street to enjoin the construction and maintenance of an electric street railway on two grounds: (1) That it would interfere with the lot owner's accustomed use of the street for backing vehicles up to his warehouse; (2) would be dangerous to those residing or doing business on the street. The nisi prius court denied the application for injunction, and its judgment was affirmed by the court of appeals; but the question as to whether the construction and operation of the street railway was an additional burden is not mentioned in the case; nor is the question as to whether the street railway company would be liable to damages for the injury done to the lot owner's property by the construction and operation of the railway either argued or discussed in the opinion; and though the question as to whether electric street railways were additional burdens had prior to that date been presented to several courts of last resort, no case of any court is cited in the opinion.

The case from the United States circuit court for the district of Arkansas is Williams v. City Electric Street R. Co. 41 F. 556. In that case the United...