Syllabus
by the Court.
The
location and operation of a railroad upon a public highway
may occasion incidental inconvenience and injury to an
abutting landowner, but until it cuts off or materially
interrupts his means of access to his property, or imposes
some additional burthen on his soil, his injury is the same
in kind as that suffered by the community in general, and he
cannot recover in an action therefor.
[Ed
Note.-For cases in point, see Cent. Dig. vol. 18, Eminent
Domain, §§ 305-311.]
Error
from District Court, Logan County; before Justice Jno. H
Burford.
Action
by C. H. Scrutchfield against the Choctaw, Oklahoma & Western
Railroad Company. Judgment for defendant. Plaintiff brings
error. Affirmed.
This
action was commenced in the district court of Logan county by
the filing of the following petition: "Comes now said
plaintiff and for his cause of action against said defendant
alleges and avers: That defendant is a corporation duly
created, organized, and existing under and by virtue of the
laws of the territory of Oklahoma, and that such defendant
has constructed a railroad within the corporate limits of the
city of Guthrie, in said territory. That plaintiff was, long
prior to the construction of such railroad as aforesaid, and
ever since has been, and still is, the legal owner in fee
simple of lots ten (10), eleven (11), thirteen (13), and
fourteen (14) in block sixty-five (65), and lot fifteen (15)
in block fifty (50), all in that part of said city known as
'East Guthrie.' That at all said times plaintiff had
and still has a good dwelling and residence house on said
lots ten and eleven and a brick business building on said lot
fifteen, and used said lots thirteen and fourteen for a wood
market and other purposes. That said residence lots ten and
eleven are located on Vilas avenue, in said city, and were at
all said times. That such avenue was a lawful avenue and
street of said city, and was laid out and worked by said
city, and was a thoroughfare on which the public had a right
to travel, and the same was much used by the general public
for such purpose, that said avenue ran east and west in the
front of said residence lots, and that Vine street runs north
and south twenty-five feet west of said lots. That defendant
has constructed its railroad upon and appropriated one-half
of said Vine street, and has constructed its said road upon
over, and across said Vilas avenue at a point about 75 feet
west from plaintiff's said residence lots, and has
completely and permanently obstructed and closed said avenue
to any use or travel by the public, and has permanently
closed and prevented said avenue from being used as an outlet
from said lots. Plaintiff further alleges that said lots
thirteen and fourteen are and were located on Springer avenue
at the corner of Vine street, aforesaid, and before the
construction of said railroad were valuable as a residence
site, and also for the business purpose for which the
plaintiff was using them as aforesaid. That defendant has
constructed its railroad upon and along said Vine street at a
point about 40 feet west of said lots, and has appropriated
and closed to the public one-half of said street; that said
street was a lawful public and much used thoroughfare, the
same as said Vilas avenue. Plaintiff further alleges that
said lot fifteen is located on Harrison avenue, a short
distance west of said railroad; that for a long period of
time said avenue, a short distance east of said lot and at
the place where said road is now built, was completely cut
off and closed to the use of the public; that during all said
time plaintiff was engaged in business on said lot, buying
and selling new and second-hand goods, and wood, dealing in
live stock and other business; that a large part of his
business patronage came from points east of the point at
which defendant obstructed said avenue, and that, as a
consequence of such obstruction, plaintiff's business and
profits therefrom were greatly injured and lessened; that
said avenue was a lawful and public thoroughfare the same as
said Vilas avenue; that it ran east and west past
plaintiff's said business lot, and was a good business
street with prospects of becoming much better. Wherefore, by
reason of all the foregoing actions and doings of said
defendant, plaintiff's said real estate has been rendered
much less valuable, and plaintiff has been otherwise injured
and damaged, all the plaintiff's damage in the sum of
four thousand dollars, for which sum with the costs of this
action he prays judgment against said defendant." To
this petition the defendant filed a general demurrer upon the
grounds that the petition does not state facts sufficient to
constitute a cause of action. The cause coming on to be heard
in the court below, upon the demurrer, the same was by the
court sustained and the cause dismissed, at the cost of the
plaintiff, and from this ruling and judgment of the trial
court the cause is brought to this court upon error.
H. M
Adams and Devereux & Hildreth, for plaintiff in error.
GILLETTE
J.
From
the foregoing statement of facts, it is manifest that the
question presented in this case is whether or not the owner
of real property can maintain an action for damages thereto
by reason of the lawful construction of a railroad where no
part of the premises are taken by the railroad right of way,
and where the only damage complained of is such as arises by
reason of the construction of the railroad across a
street which runs in front of the plaintiff's property,
and which street is obstructed by the construction of the
railroad, at the point where said street is so crossed. From
the petition filed in this case, and which is set out in the
statement of facts herein, it is apparent that the defendant
constructed its line of road so as to occupy the west half of
Vine street, which runs north and south in the city of
Guthrie. This street is crossed at right angles by Harrison
avenue upon which the plaintiff owns a business lot, about
150 feet west of the railroad. It is also crossed at right
angles by Vilas avenue, upon which the plaintiff owns a
dwelling house property, about 75 feet east of the railroad,
and is also crossed at right angles by Springer...
