Newell v. Minneapolis, L. & M. Ry. Co.

• Decision Date: 05 April 1886
• Citation: 27 N.W. 839,35 Minn. 112
• Court: Minnesota Supreme Court
• Parties: NEWELL v MINNEAPOLIS, L. & M. RY. CO.

35 Minn. 112

27 N.W. 839

NEWELLvMINNEAPOLIS, L. & M. RY. CO.

Supreme Court of Minnesota.

Filed April 5, 1886.

Appeal from an order of the district court, Hennepin county.

MITCHELL, J., dissenting. Hart & Brewer and A. L. Levi, for appellant, George R. Newell.

Cross, Hicks & Carleton, for respondent, Minneapolis, L. & M. Ry. Co.

BERRY, J.

Plaintiff is owner of certain land abutting on a public street in Minneapolis called “First Avenue South,” and therefore owner of the fee of the half of the street adjoining his premises, subject to the street easement. As the complaint alleges, defendant-a railway corporation, and assuming to act as such-has wrongfully entered upon plaintiff's portion of the street, and taken possession thereof for its road-bed, laying down ties and rails thereon, and using and continuing in possession thereof for the operation of its railway, all without plaintiff's consent, and without payment of compensation. The plaintiff brings this action in the nature of ejectment for a restitution. In our judgment the case can present but two questions:

1. Is the construction, maintenance, and operation of defendant's railway the imposition upon the soil of First avenue south, adjacent to plaintiff's premises, of a servitude additional to the proper public easement in such street? If this question be answered in the affirmative, the case is at an end, for the addition servitude, (if any there be,) having been imposed upon plaintiff's soil without his consent, and without compensation, he is entitled to put a stop to its continuance. But if the question be answered in the negative, then the second quession is, can the plaintiff object to defendant's use of the street for the purposes of its railway?

To answer the first question it is necessary to consider to some extent the nature of a street easement. The public easement in a public street is the public and common right to use the same for the passage of persons and things, and for purposes incidental thereto. The exercise of this right is subject, in some degree, to regulations to be made by the proper authorities. The ownership of the soil on which the street is laid being absolute, subject only to the street easement, the owner has the right to insist that the street shall be used and enjoyed for the legitimate purposes of its creation and existence, and for no others. As the right of use is public and common, every member of the public, i.e., every person, is entitled to avail himself of it; and hence no person can lawfully monopolize its use, or, what would amount to the same thing, use it so as to exclude any other person from it.

This proposition is, however, not to be understood as trenching upon any right which the public authorities may possess to prescribe the purposes for which a particular street shall be used; as, for instance, for light or heavy traffic, as the case may be. How the monopolizing of the use of a street, or the illegal exclusion of any one from it, is accomplished cannot be important. They may be effected either by an appropriation or occupation of the entire surface of the street, or by the use of a part of it in such way as to render its legitimate use by others impracticable, and thus practically deprive them of its use altogether. Thus, for instance, an ordinary railroad, constructed and operated in and along a street, though it is used for the passage of persons and property, and is therefore, so far as this general nature of its business is concerned, using the street for proper street purposes, yet the mode of its construction or operation, or both, are such as to monopolize the street, and virtually and practically exclude the general public from its legitimate use. So that the use of the street for such railroad is inconsistent with the common and public use of it, in which every person is entitled to share, and hence it is held to be the imposition upon the soil of a servitude differing from, and additional to, that of the proper and lawful street easement. The case of an ordinary street railway is otherwise. There the street is also used for the passage of persons and property, but in such manner as not, substantially, to interfere with the common and public right of every person to use the street also; and so the use of a street by such street railway is held not the imposition of an additional servitude. So that when a street is being used for the purpose (legitimate in its general nature) of the passage of persons and property, but objection is made to the mode of use, the question of rightfulness depends upon whether the use objected to is consistent or inconsistent with the common public use, in which every person is entitled to share.

This question of consistency or inconsistency is a question of law; that is to say, the facts of a given case being ascertained, it is for the court to pronounce upon their effect, and to determine whether a manner of using a street complained of is or is not, all things considered, a substantial infringement upon the common public right. We say a substantial infringement, all things considered, because it is not every mere inconvenience or temporary hinderance to which one person, in using a street, may be subjected by the manner in which another uses it, which presents a case of inconsistency with the common public right. The inconsistency must be such that the common public use cannot, in its substantial integrity, co-exist with the use complained of. If the existence of the latter is inconsistent with the substantial integrity of the former, then the latter cannot stand as a proper and lawful use of the street easement. If the use complained of is such that the public and common right of passage of persons and things cannot be enjoyed without substantial impairment on account of the manner of such use, then it is inconsistent with the public and common right, and not a proper and lawful use of the easement of the street. But no merely technical or trifling interruption or obstruction is to be regarded as a substantial impairment, for common sense requires that these words should receive a reasonable and liberal construction, and it must always be borne in mind that in organized civil society the individual must necessarily enjoy a common public right with reference to the general convenience and the rights of others. The foregoing rules and principles are, in our judgment, fully supported, either directly or by logical deduction, by Carli v. Stillwater S. R. & T. Co., 28 Minn. 373, S. C.10 N. W. Rep. 205, and the authorities there cited.

It remains to apply them to the facts of this case as found by the court below to exist when this action was commenced, which, so far as deemed material for this purpose, are as follows: At the time when this action was commenced defendant's railway extended from near the westerly end of the suspension bridge, a central place in the city of Minneapolis, for a distance of one and a half to two miles within the city limits; thence via Lakes Calhoun and Harriet for a further distance of about 18 miles to Lake Minne tonka. Defendant's line of railway is a single track of three-feet gauge, (with occasional turn-outs,) and so laid with a light T rail that the top of the rail conforms to the surface grade of the street or roadway, and so planked at the sides of the rails, and filled and graded between the rails, that the track does not interfere with the passage of vehicles, or with any use of the highway, more than do the flat rails, well laid, of the ordinary horse railroad. The passenger cars are from 34 to 37 feet long, and so constructed that travelers can readily step on or off the same to or from the street or road. Within the city, and as far out as Lake Calhoun, they are drawn either singly or in trains of from two to four cars, and, on rare occasions, in greater number than four cars, by Baldwin motors, which are small steam-engines entirely encased in cabs, so that no part of the machinery is visible from the outside, and from 19 to 21 feet long, having the appearance of a short car, except that a smoke-pipe about nine inches in diameter stands a foot or more above the top of the cab. No bell or whistle is used. The steam is exhausted in the engine. Anthracite coal is used for fuel, making little or no smoke, and neither smoke nor steam is often perceptible. Between Lakes Calhoun and Minnetonka a narrow-gauge locomotive engine is used to draw some trains, and some are drawn by the motors. Six trips or more each way per day have been regularly made between the city terminus of the railway and Lake Calhoun, but a less number between Lakes Calhoun and Minnetonka. The cars are moved along First avenue south, past plaintiff's land, and through all the closely-settled portion of the city, at a speed of three to four miles an hour, and are furnished with air-brakes, and can be stopped in...