Reichert v. St. Louis & S. F. Ry. Co.

• Decision Date: 01 June 1889
• Citation: 11 S.W. 696
• Parties: REICHERT <I>et al.</I> <I>v.</I> ST. LOUIS & S. F. RY. CO.
• Court: Arkansas Supreme Court

11 S.W. 696

REICHERT et al.

v. ST. LOUIS & S. F. RY. CO.

Supreme Court of Arkansas.

June 1, 1889.

Appeal from circuit court, Sebastian county; JOHN S. LITTLE, Judge.

Martin & McDonough, for appellants. Clayton & Forrester, for appellee.

HEMINGWAY, J.

The appellants are the owners of certain lots in Fort Smith that abut on Ozark street. In 1883 the appellee constructed its railroad along the center of the street, and since then has used it in running its trains. The appellants owning the lots, and therefore to the middle of the street, brought this action to recover possession of that part of the street occupied by the appellee's road-bed. The appellee answered in five paragraphs. The appellants demurred to the answer, and the court overruled the demurrer to the third and fourth paragraphs. The appellants "elected to stand on their demurrer," and the court dismissed their complaint, with costs.

They allege, as grounds upon which to reverse the judgment, that the court erred in overruling their demurrer to the third and fourth paragraphs in the answer, which are as follows: "(3) Defendant, further answering, says that on the 2d day of January, 1883, the city council of the city of Fort Smith granted to it, by an ordinance passed by said council, the right of way over, along, and upon said street; that under and by virtue of said ordinance, and the provisions of its charter, it entered upon and constructed its roadbed upon said street, and has continued to occupy the same in the manner and for the purpose contemplated by its charter and the said ordinance; that on the 1st day of March, 1883, the general assembly of the state of Arkansas passed an act validating and confirming said ordinance, and the right of the defendant thereunder, and defendant says its entry upon and use of said streets and premises as a right of way was and is not wrongful, and that plaintiffs are not entitled to have and maintain their said action. (4) Defendant, further answering, says that it entered upon and constructed its road along, over and upon said street as claimed by plaintiffs, and built its station-house and established its depot for the city of Fort Smith at the intersection of Ozark street with Walnut street, and expended large sums of money laying its track, acquiring depot grounds, and erecting suitable depot buildings; that plaintiffs, and those under whom they derive their alleged title, had full knowledge of the aforesaid facts, and made no objection to the occupancy of said street by defendant as aforesaid, although they knew that the use and occupancy thereof was essential to enable the defendant to reach its depot with its trains and conduct its business. Wherefore the defendant alleges that plaintiffs are estopped from bringing their action in this cause." It is conceded in the pleadings that the appellants hold the freehold to the middle of the street, subject to the easement of the public to use and enjoy it as a street.

A street is a highway, nothing more, over which the people have a right of passage. The interest of the public in it does not comprehend any interest in the soil. The right of the freehold is unaffected by establishing the highway. Its use by every citizen must be appropriate for the purpose for which it was intended, — that is, of transit, with such stoppage as business, necessity, accident, or the ordinary exigencies of travel may require. The owner of the freehold may make any use of the soil not inconsistent with the public easement; and any use of it by another, which is not within the scope of the easement, is an infringement of his rights for which he may invoke the ordinary legal remedies. 2 Smith, Lead. Cas. 144, 167; Goodtitle v. Alker, 1 Burrows, 133; Taylor v. Armstrong, 24 Ark. 102. The appellee's occupancy and use of the street is an infringement of the reserved rights of the appellants therein, unless it is one of the modes of enjoying the easement in a street contemplated in its original dedication. Upon this question the authorities are divided. Judge Dillon, after a thorough and discriminating investigation and consideration of the authorities, concludes that "the weight of judicial authority at present undoubtedly is that where the public have only an easement in streets, and the fee is retained by the adjacent owner, the legislature cannot, under the constitutional guaranty of private property, authorize a steam railroad to be constructed thereon against the will of the adjoining owner, without compensation to him. In other words, such a railway, as usually constructed and operated, is an additional servitude." 2 Dill. Mun. Corp. p. 717. The question was decided by the supreme court of Massachusetts, in the case of Inhabitants v Railroad Co., 4 Cush. 71, and Mr. Chief Justice SHAW, delivering the opinion of the court, said: "The two uses are almost, if not wholly, inconsistent with each other; so that taking the highway for a railroad will nearly supersede the former use to which it had been legally appropriated." The court of appeals in New York, in several cases, has announced the same conclusion. In the case of Wager v. Railroad Co., 25 N. Y. 533, the court say: "It is quite apparent that the use by the public of a highway, and the use thereof by a railroad company, is essentially different. In the one case every person is at liberty to travel over the highway in any place or part thereof, but he has no exclusive right of occupation of any part thereof, except while he is temporarily passing over it. It would be a trespass for him to occupy any part of the highway exclusively for any longer period of time than was necessary for that purpose and the stoppage incident thereto. But a railroad company takes exclusive and permanent possession of a portion of the street or highway. It lays down its rails upon, or imbeds them in, the soil, and thus appropriates a portion of the street to its exclusive use, and for its own particular mode of conveyance." The same court, discussing the question in the case of Williams v. Railroad Co., 16 N. Y. 109, says: "The argument is that, as he has consented to the laying out of a highway upon his land, ergo, he has consented to the building of a railroad upon it; although one of these benefits his land, renders access to it easy, and enhances its price, while the other makes access to it both difficult and dangerous, and renders it comparatively valueless. * * * It is the public interest supposed to be involved which begets the difficulty, and it is just for this reason that the constitution interferes for the protection of individual rights, and provides that private property shall not be taken for public use without compensation." The operation of the cars endangers others in the use of the highway, and is always attended with annoyance and inconvenience to those occupying adjacent property. The rules above find emphatic indorsement from the supreme court of Wisconsin in the case of Ford v. Railroad Co., 14 Wis. 609. They are approved, either directly or indirectly, by the courts of last resort in a large number of the states, and we think are sustained as well by reason as authority. City of Denver v. Bayer, 23 Amer. Law. Reg. 440, 2 Pac. Rep. 6; Railroad Co. v. Hartley, 67 Ill. 439; Imlay v. Railroad Co., 26 Conn. 249; Kucheman v. Railway Co., 46 Iowa, 366; Cooley, Const. Lim. 549; Taylor v. Railroad Co., 63 Wis. 327, 24 N. W. Rep. 84.

When the carriages and motors used in operating a railroad, and their danger to others using the same highway, the insecurity, inconvenience, and annoyance they occasion occupants of adjacent lots, and the injury to the use and value of the lots, are considered, the analogy between the use of the street for ordinary travel and its use for a railroad is entirely lost. Such being the case, the right of way of the appellee was carved out of the freehold of the appellants, and not out of the easement controlled by the city of Fort Smith. Under the constitution, the city of...