Taber v. N.Y., P. & B. R. Co.

• Decision Date: 08 March 1907
• Citation: Taber v. N.Y., P. & B. R. Co., 67 A. 9, 28 R.I. 269 (R.I. 1907)
• Parties: TABER v. NEW YORK, P. & B. R. CO. In re CLAIM OF TIFFANY.
• Court: Rhode Island Supreme Court

67 A. 9

28 R.I. 269

TABER

v. NEW YORK, P. & B. R. CO. In re CLAIM OF TIFFANY.

Supreme Court of Rhode Island.

March 8, 1907.

Petition by Henry M. Taber for the appointment of commissioners to estimate damages caused by the location of the New York, Providence & Boston Railroad Company. There was an appeal from the award by claimant James Tiffany, and upon trial of his claim by a jury he was awarded no damages. From an order denying a new trial, he excepts. Remanded for a new trial.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARK-HURST, JJ.

William A. Morgan, for claimant Tiffany. Lewis A. Waterman, for respondent railroad company.

JOHNSON, J. By an act passed at the May session of the General Assembly, 1888 (Laws 1888-89, p. 91), permission was given to the defendant railroad company, among other things, "to widen, construct, and use its old roadbed in the city of Providence, and to extend the same across Henderson street, through Allen's avenue, so called, and in the same direction, until it conies to Eddy street." An amendment to this act, passed at the January session, 1891, merely extended the time in which the railroad company might file its location in the court of common pleas. On the 22d day of July, 1891, the railroad company located its railroad in Allen's avenue, in pursuance of the authority given it by said acts, and filed its report and a plat of its said location in the court of common pleas in Providence. May 15, 1896, it filed in the common pleas division of the Supreme Court an abandonment of a portion of its said location, retaining a strip 40 feet wide in the center of Allen's avenue. On February 14, 1896, the petitioner filed his petition, in said common pleas division, that commissioners be appointed to estimate damages caused by said location. After numerous hearings, and an amendment of the petition, the same was granted, and three commissioners were appointed by the court to estimate damages. At the time of said location, and up to the present time, the claimant, Tiffany, owned a tract of land, consisting of a large number of lots on the Allen plat, extending from Allen's avenue out to the harbor line, and said Allen's avenue was a part of said plat. The claimant duly filed and proved his claim for damages by reason of said location, before said commissioners, and in their report, filed in said common pleas division December 27, 1900, said Tiffany was awarded the sum of $2,718. From this award Tiffany appealed, and his claim for damages was thereafterwards tried to a jury. Upon such jury trial no damages whatever were awarded said claimant. After verdict the claimant moved that a new trial be granted him, which motion was denied, and he duly excepted thereto. He then filed his bill of exceptions to the rulings of the trial judge and to his denial of said motion, and the case is now before us on said exceptions.

The exceptions raise the following questions: (1) Is the railroad company entitled to occupy its said location 40 feet in width in Allen's avenue, to the exclusion of the public? (2) Is the claimant, Tiffany, entitled to damages for the taking by the railroad company of his land in said Allen's avenue? (3) Is said claimant entitled to damages, caused by the location of said railroad, to his land east of and abutting on said Allen's avenue, and not covered by tide water? (4) Is said claimant entitled to damages, caused by said location, to tide-flowed lands adjoining his upland on said Allen's avenue? (5) If the claimant is entitled to damages by reason of said location, are benefits from said location which are general to all abutters on said Allen's avenue to be deducted from his damages?

1. We think the first question must be answered in the negative. At the time of the location of the railroad Allen's avenue was a public highway. The act authorizing the extension of the railroad through said avenue provided: "Sec. 2. Said railroad company shall not lay any rails in any of the streets in the city of Providence without the permission of the city council of said city, and upon such terms and conditions as it may prescribe." A public highway cannot be condemned for railroad purposes without express legislative authority; and, when the consent of the municipality in which the highway is situated is required by the act granting the authority, it is a condition precedent to any valid right to use the street. City of Philadelphia v. River Front R. Co., 173 Pa. 334, 34 Atl. 60; Appeal of Pittsburgh, etc., R. Co., 1 Penny. (Pa.) 449; West Jersey Traction Co. v. Camden Horse R. Co., 53 N. J. Eq. 163, 35 Atl. 49. The right of a railroad to cross or pass along a highway does not include the right to build permanent structures upon it (other than its tracks at the grade of the street), or to use it for a freight-yard, or any exclusive purpose, but it is limited to a reasonable use by crossing, passing, and repassing, consistent with the earlier public right. Tate v. Ohio, etc., R. Co., 7 Ind. 479; Lackland v. North Missouri R. Co., 31 Mo. 180; Savannah, etc., R. Co. v. Shiels, 33 Ga. 601; Gahagan v. B. & L. R. Co., 1 Allen (Mass.) 187, 190, 79 Am. Dec. 724. In this case the court says: "It was undoubtedly true that the defendants could not lawfully use the highway as a part of their freight-yard; that is to say, they had no right to make the exclusive use of it which their own convenience required, which they could make of their own property. Rut they could pass and repass upon the highway for any lawful purpose, provided they used it only to a reasonable extent, and in a reasonable manner, without encroaching upon the rights of others who had an equal right to use it." In Gear v. C., C. & D. R. R. Co., 43 Iowa, 83, the railroad company took 100 feet of land for a right of way. A part of this right of way was a traveled road, if not a public highway. The court says: "When a railroad company lays its tracks upon a public highway, it undertakes at its peril, by some means, to put the public highway in as good condition for travel as before. For its neglect to do this it may be indicted, and, if necessary to protect the public in the use of the highway, the obstruction may, by a proper order, be abated even if the result be the destruction of the railroad at the point where it obstructs the public travel."

2. As to the second question: Allen's avenue being a public highway at the time of the location of the railroad, the company could only lay its rails therein with the consent of the city council of Providence, and could not so use the street as to prevent the reasonable use of the same as such public highway. But, in addition to the right to lay rails with such consent of the city council, the company in this case has a location 40 feet in width along Allen's avenue in the center thereof. It has not been content with the right to lay rails, but has exercised the right, under the act above referred to, of taking said 40-foot strip as a railroad location. Such being the case, and the fee to the center of the street being in Tiffany, it is a taking of his property for which just compensation must be made. Before the location of the railroad company, if the highway had been abandoned, the use of the land in question would have reverted to Tiffany. After the location, in case of such abandonment, the land would still be subject to the easement of the railroad use. As was said by Storrs, C. J., in Imlay v. Union Branch R. R. Co., 26 Conn. 249, 68 Am. Dec. 392: "No argument or illustration can strengthen the self-evident proposition that, when a railway is authorized over a public highway, a right is created against the proprietor of the fee in favor of a person, an artificial person, to whom he before bore no legal relation whatever. It is understood that, when such an easement is sought or bestowed, a new and independent right will accrue to the railroad corporation as against the owner of the soil, and that, without any reference to the existence of the highway, his land will forever stand charged with the accruing servitude." The claimant is therefore entitled to compensation for his land in Allen's avenue covered by the railroad location, at its value at the time of said location, not the value it would have if free from the easement of the public highway, but its value subject to such easement. Evidence therefore as to the value of said land was properly admissible, and the exclusion of the same was erroneous.

3. The third question must be answered in the affirmative. Where the fee of the street is in the abutting owner, the measure of damages is the same as in other cases where a part of a tract is taken; that is, the value of the land taken, subject to the easement for a public highway and damages to the remainder of the tract by reason of the taking of a part for railroad purposes. Imlay v. Union Branch R. Co., supra; Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423.; Hegar v. Chicago, etc., R. Co., 26 Wis. 624; Muller v. Southern Pac. R. Co., 83 Cal. 240, 23 Pac. 265; Laing v. N. J. R. Co., 54 N. J. Law, 576, 25 Atl. 409. 33 Am. St. Rep. 682.

4. In regard to the fourth question, whether the claimant is entitled to damages caused by said location to tide-flowed land adjoining his upland on said Allen's avenue, it is evident that he had at the time of said location no title to said tide-flowed lands. That the title to such lands is in the state has been uniformly and repeatedly decided by this court. Engs v. Peckham, 11 R. I. 210; Bailey v. Burges, 11 R. I. 330; Brown v. Goddard, 13 R. I. 76; Folsom v. Freeborn, 13 R. I. 200; Allen v. Allen, 19 R. I. 114. 32 Atl. 166, 30 L. R. A. 497, 61 Am. St. Rep. 738; City of Providence v. Comstock, 27 R. I. 537, 65 Atl. 307. In Engs v. Peckham, supra, the court held that the establishment of a harbor line operates as a license or invitation to the riparian proprietor to fill or wharf out to that line. The title not...