Johnsen v. Old Colony R Co.

• Decision Date: 06 July 1894
• Citation: 18 R.I. 642,29 A. 594
• Parties: JOHNSEN v. OLD COLONY R CO.
• Court: Rhode Island Supreme Court

29 A. 594

18 R.I. 642

JOHNSEN

v. OLD COLONY R CO.

Supreme Court of Rhode Island.

July 6, 1894.

Action by Mary J. Johnsen against the Old Colony Railroad Company. There was a verdict for plaintiff, and defendant moves for a new trial. Denied.

McGuinness & Doran, for plaintiff. Henry W. Hayes, for defendant.

ROGERS, J. By an act of the general assembly passed July 22, 1891, the Old Colony Railroad Company was authorized to take for railroad purposes certain land in the city of Providence, including a portion of Webster street, near the plaintiff's premises, the condemnation to be made under and in conformity with the provisions of the charter of the Boston & Providence Railroad & Transportation Company. The plaintiff's claim was rejected by the commissioners, whereupon she asked for a jury trial, as provided for in the charter. Upon trial in the court of common pleas, before a jury, she recovered a verdict of $600; and the defendant now petitions for a new trial, alleging errors in the rulings of the presiding justice, that the verdict was against the law and the evidence, and that the damages were excessive. The taking of Webster street by the defendant consisted in closing it up bodily, so as to prevent any passing whatsoever over it, whereby the plaintiff's house was thrown into a cul de sac, leading off of Ashburton street, whereas before that it was upon an open, much-frequented way or street. The plaintiff owns a house and lot on the southerly side of Webster street, about 71 feet easterly of the part of the street taken, and about 84 feet westerly from Ashburton street, the nearest open street to her premises. Webster street, before it was closed up, at the time of the condemnation, was a public highway, with considerable travel over it; and though the city council of Providence, before the condemnation, had declared that part of Webster street taken to be useless, and that it had been abandoned as a highway, yet the plaintiff had appealed from the order of the council. The plaintiff's estate forms a part of the Philip W. Martin flat, which was duly recorded in the Providence land records, to which plat her title deeds referred, and upon which plat is shown and laid out a street, which has since been established as a public street, under the name of Webster street. The estate, then, a part of which—viz. a way or right of way—has been taken by the defendant, is a lot of land on the Philip W. Martin plat, appurtenant to which is a way or street laid out on said plat, superimposed upon which way is a public highway, which appurtenant way would remain to the plaintiff should Webster street ever be abandoned as a highway. For the damage done to her by taking her interest in this way or street under her deed, the plaintiff claims damage.

The charter of said Boston & Providence Railroad & Transportation Company (section 1) provides that all damages that may be occasioned to any person by the taking of land or material for laying out and constructing its railroad shall be paid for by said corporation in manner thereinafter provided, which is the manner followed in the proceedings in this case. Did the plaintiff have such an interest in the way now known as "Webster Street" that said street cannot be taken and closed by the defendant without compensation to her? We are of the opinion that she did have such an interest, and no question has been made but that, if she did have such an interest, it was taken within the constitutional and statutory meaning of the word "take." Not only an absolute fee in land, but a right of way over land, or any easement or right connected with it, may be taken by eminent domain, and of course, if so taken, must be paid for. Pratt v. Railway Co., 19 Hun, 30; Common Council v. Croas, 7 Ind. 9; City of Indianapolis v. Kingsbury, 101 Ind. 200; Gerhard v. Commissioners, 15 R. I. 334, 5 Atl. 199; 6 Am. & Eng. Enc. Law, 531, 542. The defendant contends that when such private way has been taken for highway purposes, and condemnation of a portion of said highway is made for railroad purposes, the reversionary interest of such lot owner in said way is not of such appreciable value as to require compensation, or, at most, anything more than nominal damages. In our opinion, the amount of damages in each case must be determined by the circumstances attending it. Those who suffer have their actions, and in each particular case the jury must determine the amount of damages. The "reversionary interest" in Webster street, as the defendant terms the private right of way, in contradistinction from the right of the public in a public highway, is what prevents the state, even, from closing it up without compensation to the plaintiff; and, if the approach to plaintiff's estate over Webster street is shown to the jury to be valuable, theirs is the duty of assessing the damage. The argument that the value of the plaintiff's right of way over Webster street was as if she had to stop at the limit of the Philip W. Martin plat, and could proceed no further, is erroneous; for her right of way over Webster street and the streets on said plat led to public highways, which could be traveled over to points beyond the plat.

The difference between the market value of plaintiff's estate before and after the condemnation, so far as directly affected thereby, is unquestionably the proper measure of damages. If the property has been sold since the condemnation, that would doubtless furnish the best evidence as to its value; but when, as in this case, it has not been sold, then other evidence of the reduced value must be resorted to, and whatever lessens its desirableness and the price that purchasers would pay for it—causes directly attributable to the condemnation and closing up of plaintiff's private way—would be proper evidence. The plaintiff testified that she paid $2,500 for the estate 10 years ago, at...