McQuaid v. Portland & V. Ry. Co.

• Decision Date: 10 December 1889
• Citation: 22 P. 899,18 Or. 237
• Parties: McQUAID v. PORTLAND & V. RY. CO.
• Court: Oregon Supreme Court

22 P. 899

18 Or. 237

McQUAID v. PORTLAND & V. RY. CO.

Supreme Court of Oregon

December 10, 1889

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

The appellant commenced an action against the respondent, a private corporation formed under the laws of the state, to recover damages caused by its constructing and operating a railway in certain streets in the city of East Portland. He alleged in his complaint, that he was owner in fee of lots 7 and 8, block 67, situated at the south-west corner of Third and E streets, in said city, including 100 feet square fronting and abutting upon said streets; and that his ownership thereof extended to the center of the part of said streets upon which his said lots so fronted and abutted subject to the public easement therein. That the respondent constructed a railroad in said city extending from the intersection of N and Water streets north, along Water street, to J street; thence east, up J street, to third street; thence north, along Third street, to said E street thence east, along said latter street, to Fourth street; and thence north, along Fourth street, to its northern termination. That, in constructing said railroad, the respondent unlawfully, and without the license or consent of appellant, and against his protest, and without making compensation to him for taking said streets, took and occupied the portion of said Third street owned by appellant as aforesaid, and constructed its railroad thereon a distance of 100 feet in front of appellant. That, in constructing said railroad in said portion of Third street, the respondent negligently and willfully, built the railroad above the grade of the street the whole distance of the 100 feet, and made a large curve in its road at that point; building its road so near the curb of said lots that a wagon cannot pass between it and the railroad. That respondent wrongfully and unlawfully constructed the railroad on E street, between Third and Fourth, in the form of a reverse curve or letter S. That the portion of Third and E streets upon which the said lots fronted had been improved by appellant at a cost of $165. That respondent had since September 20, 1888, been operating the said railroad, carrying freight and passengers thereon, and has since said date and is now using, in operating the road, an old and defective locomotive, also a cheap and badly constructed locomotive engine, which is housed in, and a falsely called "steam-motor," which is propelled along said streets, over its said road. That said locomotives, in propelling the cars on the railroad, emit large quantities of steam, smoke, and cinders make loud noises, which annoy the appellant, and disturb him, so as to injure his peaceful and quiet possession of said property; and respondent has taken and appropriated said part of said streets, thereby interrupting and obstructing his access to his said lots, and has almost driven travel off said streets. That, in consequence thereof, the respondent has rendered the appellant's said lots of less value, and damaged him in the full sum of $3,000. The respondent, for answer to the said complaint, denied the alleged negligence in the construction of its road, or that it was above grade, or had a reverse curve, or that it retarded access to the appellant's lots, or that it used the alleged character of engines; denied the alleged ownership of appellant in the fee of the street; alleged that the road was constructed in pursuance of authority granted by the common council of the city of East Portland; denied that it was intended or suitable for, or operated for, the conduct of a general freight business, but alleged that it was only operated for the local passenger business along the streets of East Portland, and contiguous towns, and for such business as is usually carried on by cable or horse-car lines of street railways. The respondent further alleged that the town of East Portland was platted in 1865, and the streets thereof dedicated to public use, by James B. Stephens, who was then the owner of the land, and that at the time of such dedication the General Laws of Oregon made such streets subject to use for the construction and operation of railroads; and it denied that appellant had been damaged. A reply was filed, denying all the allegations of new matter alleged in the answer. The case was tried in the circuit court by jury, who returned a verdict in favor of the defendant upon which verdict the judgment appealed from was entered. The appellant assigned a number of grounds of error, relied upon on the appeal, which are noticed in the points of the respective counsel, and referred to in the opinion of the court herein.

(Syllabus by the Court)

1. In a conveyance of land bounded by a public road or street, the grantee ordinarily takes a legal title to the center therein; but he does not thereby secure such a title to the land embraced in the road or street as will enable him to claim compensation from a railway corporation which locates and operates its road thereon, under an appropriation of the same authorized by section 3242, 3243, tit. 2, c. 32, Hill, Code Or., or by any similar statute.

. Whether an owner of land which abuts upon a public road or street can maintain an action for damages against a railway corporation for locating, constructing, and operating its road thereon, under an appropriation thereof authorized by such statute, does not depend upon his ownership of the fee to the land included in the public road or street, but upon the fact as to whether the location and operation of the railway destroys or materially interferes with his access to his premises.

An owner of real property has a right to the use of the public road or street upon which it abuts, for the purposes of ingress and egress to and from the same.

This right is appurtenant to his premises, and constitutes such a property interest that it cannot be taken away or seriously impaired, against his will, for any purpose, without payment of just compensation therefor.

Where a railway corporation locates and constructs its road upon a public highway under an appropriation thereof authorized by the statute referred to, its occupation of the highway is a kind of sufferance.

It is permitted to appropriate so much of the highway as may be necessary or convenient for such purpose, but the use thereof by the public is not thereby restricted. The railway corporation is allowed to build and operate its road upon the highway, but it has no authority to change the grade thereof, or use it to the exclusion of the public, or in such a manner as will infringe upon the rights of adjoining property owners to its use.

The latter are compelled to submit to ordinary inconveniences and annoyances which the operation of a railway located upon a public road occasions; but they cannot be deprived of the right of ingress and egress to and from their premises, without their consent.

Where a railway corporation locates its road, under the provisions of such a statute, in such close proximity to the premises of an adjoining lot-owner that its use obstructs his communication with the street, and interferes with its enjoyment by those who occupy the premises to such an extent as to materially depreciate their value, the lot-owner is entitled to recover the amount of such depreciation.

In an action against a railway corporation to recover damages in consequence of its locating and constructing its road upon certain streets in a certain city, it was alleged in the complaint that the plaintiff was the owner of premises at the corner of two of the streets; that the defendant had located its road above the grade thereof, and made a large curve in its road; had built it so near the plaintiff's premises that a wagon could not pass between the curb of the sidewalk and its road; that it had so taken and appropriated such part of the streets at the corners of plaintiff's premises as to interrupt and greatly obstruct access thereto; and, it appearing that evidence was introduced upon the part of the plaintiff, at the trial of the said action, tending to prove the truth of said allegations, held, that it was the duty of the trial court to have submitted to the jury the question as to whether the location and operation of the defendant's road interfered with the plaintiff's ingress and egress to and from his premises, so as to depreciate the value thereof.

Held, further, that the plaintiff was entitled to recover damages for the amount of any depreciation in the value of his premises caused by the defendant in locating, conducting, and operating its railroad so near them as to prevent or materially affect access thereto by the plaintiff, or those occupying said premises, if found that they had suffered depreciation from such cause.

E.O. Doud and R. Williams, for appellant.

By the common-law rule, a grantee of a lot or block of land in a town-site took the fee to the center of the abutting streets. 3 Kent, Comm. (12th Ed.) 432, and cases cited; 2 Dill. Mun Corp. 631, and note, 632; In re John & Cherry Streets, 19 Wend. 657; Willoughby v. Jenks, 20 Wend. 96; Carpenter v. Railroad Co., 24 N.Y. 655; Ford v. Railroad Co., 14 Wis. 663; Weyl v. Railroad Co., 69 Cal. 203, 10 P. 510; Bissell v. Railroad Co., 23 N.Y. 61; Hammond v. McLachlan, 1 Sandf. 323; Stiles v. Curtis, 4 Day, 328; Wager v. Railroad Co., 25 N.Y. 526; Railroad Co. v. Elevator Co., 50 Pa. St. 499; Woodruff v. Neal, 28 Conn. 168; section 4184, Hill, Code; Mahon v. Railroad Co., 24 N.Y. 658. The building and operating of such a railway on the streets upon which appellant's lots fronted and abutted was a further servitude upon such streets, and was a "taking," within the meaning of the constitution, of a...