Jeffersonville, M. & I. R. R. Co. v. Esterle
| Citation | 76 Ky. 667 |
| Parties | Jeffersonville, Madison & Indianapolis R. R. Co., & c. v. Esterle. |
| Decision Date | 10 April 1878 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM JEFFERSON COMMON PLEAS COURT.
RUSSELL HOUSTON, I. & J. CALDWELL & WINSTON, BULLOCK & ANDERSON, AND C. H. GIBSON FOR APPELLANTS.
1. This suit is brought, not for any property taken and appropriated by appellants, either corporeal or incorporeal, but for indirect or consequential damages, in the shape of the diminution of appellee's property, caused by the construction and operation of the railroad tracks, not upon the property itself, but upon the public street in front of his property.
2. In all cases where advantages are not allowed to be offset against disadvantages, private landed property has been absolutely taken and appropriated. (E. & P. R. R. Co. v Helm's heirs, 8 Bush, 682; Sutton's heirs v City of Louisville, 5 Dana, 28.)
3. No question of setting off advantages against disadvantages is necessarily presented in this case. The question is, how much was appellee's property diminished by the location construction, and operation of the tracks in Fourteenth Street in front of his property?
The measure of appellee's right to a recovery is the diminution of the value of his property, fronting on Fourteenth Street, caused by the location, construction, and use of the tracks.
4. The common pleas courts erred by refusing to give instructions to the jury as asked by appellants. (Newport & Cin. Br. Co v. Foote, 9 Bush, 264; Cosby v. O. & R. R. R. Co., 10 Bush, 291; E. & Big Sandy R. R. Co. v. Combs, 10 Bush, 382; Lex. & Ohio R. R. Co. v. Applegate, 8 Dana, 289; Lou. & Frankfort R. R. Co. v. Brown, 17 B. Mon. 763.)
" In an action for a negligent injury to real property the rule of damages generally adopted is, to allow to the plaintiff the difference between the market value of the land immediately before the injury occurred and the like value immediately after the injury is complete." (Shearman & Redfield on Negligence, sec. 602, note 2; see also Wood on Nuisances, sec. 853; Chase v. N. Y. Cen. R. R. Co., 24 Barb. 274; Eastbrook v. Erie Railway Co., 51 Barb. 94; Field on Damages, sec. 744; Schuylkill Nav. Co. v. Farr, 4 Watts & Serg. 362; Pinney v. Berry, 61 Mo. 359; Porter v. North Mo. R. R. Co., Ib. 128.)
5. The legislature may authorize streets to be used by a railroad company without compensation, and without the consent of adjoining owners. (Dillon on Mun. Cor., sec. 556.)
6. It does not appear that the appellee, whose lot is bounded by the street, is the owner of the fee in the street in front of his lot. (3 Kent's Com., side-page 434; Fleming v. Kenney, 4 J. J. Mar. 155; Sanders v. McCracken, Hard. 258; Hutch v. Dwight, 17 Mass. 298; Smith v. Slocum, 9 Gray, 36; Sibley v. Holden, 10 Pick. 249; English v. Brennan, 60 N.Y. 609; White's Bank of Buffalo v. Nichols, 64 N.Y. 65; Peck v. Denniston, 121 Mass. 17; Morrow v. Willard, 30 Vt. 118; Goodeno v. Hutchinson, 54 N.H. 159; Hoboken Land Co. v. Kerrigan, 31 N.J. Law, 16; Tyler v. Hammond, 11 Pick. 213.)
R. W. WOOLLEY FOR APPELLEE.
1. The fee and possession of a highway are in the contiguous owner, subject only to a right of transit in the public. .)
2. A street in a city is a highway. (Angell on Highways, 24; 48 Ind. 182-184; Bouvier's Law Dict., title Highways.)
3. The construction of a railroad, traveled by steam locomotives, upon a street, is the imposition of a new servitude, and, if not authorized by ad quod damnum or private contract, is a trespass upon the close of the owner of the contiguous land.
These cases establish, beyond all question, the broad doctrine that the appropriation of a highway by a railroad company, which enters upon and occupies such highway with the track of its road, is 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, and that the company can derive no title under acts of the legislature and the license of municipal authorities without the consent of the owner of the fee, or the appraisal and payment of his damages in the mode provided by law. (Craig v. Rochester City & Brighton R. R., in opinion of J. C. Smith, J., 39 Barb. 500.)
These cases must be considered as settling the question, beyond peradventure and conclusively, that the occupation and use of a street by a railroad company, operated by steam, and in the ordinary manner in which such roads are constructed and carried on, is an appropriation of the highway for a new and distinct purpose, entirely foreign from its original object, and which entitles the owner to compensation. This position can not be controverted. (Miller, J., in Craig v. R. C. & B. R., 39 N. Y. (12 Tiffany) 404, affirming case in 39 Barb.)
Taking it (the street) for railroad purposes has been adjudged to be a new and distinct use from that of an ordinary street or highway, and therefore is not supposed to have been embraced in the award of damages to the owner when the same was appropriated to highway purposes.
4. A municipal legislature can not, by ordinance, rightfully authorize a railroad corporation to impose a new servitude on a street unless after compensation being made to the owner of the contiguous land. (Lucas's Charter, 336; Cox v. L. N. & C. R. R., 48 Ind. 191; Hunt v. Rich, 38 Maine, 195; Elizabethtown, & c. R. R. Co. v. Combs, 10 Bush, 384; 9 Ind. 467; People v. H. R. R. R. Co., 32 Barb. 398; 16 Wis. 640; 17 Minn. 224; 18 Minn. 260; 41 Cal. 256.)
5. The owner of contiguous land can maintain trespass quare clausum fregit against intruding railroads for usurpation or misuse of the street. (3 Kent, 432; Angell on Highways, sec. 301, et seq., sec. 319; Hunt v. Rich, 38 Maine, 195; Cox v. L. & C. R. R., 48 Ind. 186, 192, 193, 194; Peck v. Smith, 1 Conn. 103, 142; 16 Wis. 640; 17 Minn. 224; 18 Minn. 260.)
6. There is no set-off to trespass. (Montague on Set-off, 18; Old Code, sec. 126, and note c. on page 379, and d, 381; Sutton's heirs v. Louisville, 5 Dana, 31-33; Elizabethtown, & c. v. Helm's heirs, 8 Bush, 684; Jacob v. Louisville, 9 Dana, 115, 116; The Combs Case, 10 Bush, 392.)
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."
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J., M. & I. R. R. Co., &C. v. Esterle
...76 Ky. 667 ... Jeffersonville, Madison & Indianapolis R. R. Co., &c ... Court of Appeals of Kentucky ... April 10, 1878 ... APPEAL FROM JEFFERSON COMMON PLEAS COURT ... COPYRIGHT MATERIAL OMITTED ... RUSSELL HOUSTON, I. & J. CALDWELL & WINSTON, BULLOCK & ANDERSON, AND C. H. GIBSON FOR APPELLANTS ... ...