Theobold v. Louisville, New Orleans & Texas Railway Co.

• Decision Date: 15 April 1889
• Citation: 66 Miss. 279,6 So. 230
• Court: Mississippi Supreme Court
• Parties: GEO. P. THEOBOLD v. LOUISVILLE, NEW ORLEANS AND TEXAS RAILWAY CO

6 So. 230

66 Miss. 279

GEO. P. THEOBOLD v. LOUISVILLE, NEW ORLEANS AND TEXAS RAILWAY CO

Supreme Court of Mississippi

April 15, 1889

FROM the circuit court of Warren county, HON. RALPH NORTH, Judge.

This was an action of trespass brought in 1888 against the Louisville, New Orleans and Texas Railway Company by the appellant, Theobold, the owner of a lot of land situated on Levee street in the city of Vicksburg. The defendant owns and operates a line of railroad extending from Memphis, Tenn., to New Orleans, passing through Vicksburg and over Levee street. The declaration alleges that the defendant in 1883, without any condemnation proceedings and without permission of plaintiff, constructed its track on said street and has since been operating the railroad, to the great damage of plaintiff's property. The plaintiff alleges that his lot extends to the centre of the street, which is a right of way granted to the city for the ordinary uses of a public street that the occupation by the railroad is not within the use contemplated in the grant or dedication, and imposes an additional burden, for which plaintiff claims that he was entitled to compensation.

A general demurrer was sustained to the declaration, and the suit was dismissed.

The plaintiff appealed.

In justice to the judge of the court below, counsel for the appellant state in their brief that, as there were a number of cases of the character of this pending in the court, by an arrangement of counsel, with the consent of the court judgment was entered sustaining the demurrer in order to get a test case on appeal, to settle the principles applicable to the several cases.

Reversed and remanded.

Dabney McCabe & Anderson and Jno. N. Bush, for appellant.

Where a street is dedicated the abutting proprietor owns to the centre, subject to an easement in the public; and subsequent purchasers own to the centre of the street, though their deeds only describe the land as abutting on the street. 3 Kent. Com. (6th ed.), p. 432, note d; Dill. Mun. Cor §§ 633, 663, and notes.

"But the easement of the public does not include the use of a street by a steam railroad, nor by an elevated railroad, even if the city owns the fee in the street." Washb. Eas., p. 252.

Where the public has only an easement in the street, the laying of a railroad track is an additional burden, and abutting owners are entitled to compensation for the new servitude. Dill. Mun. Cor., §§ 703, 716, and note to § 703; Imlay v. R. R. Co. , 68 Am. Dec. 32, and note; Williams v. R. R. Co., 6 Am. Dec. 651 and note.

Although the fee of the street is in the abutting owner, a municipal corporation may grant the right to a railroad company to lay its track in the street; but the company is liable to the owners for injuries resulting to his property. R. R. Co. v. Hartley, 67 Ill. 43 (s. c. 16 Am. R. 624).

In such cases neither the legislature nor the municipal authorities have power to dispense with making compensation. 80 Am. Dec. 71 and notes; 40 Wis. 652.

It is immaterial whether the fee is in the public or in the adjacent landowner, or in a third person. Barney v. Keokuk, 4 U.S. 324. See also R. R. Co. v. Schurmeir, 7 Wall. 272.

Lotowners have a peculiar interest in the adjacent street, a franchise, the right to which is as inviolable as the property in the lots themselves. Dill. Mun. Cor., § 712 and note. See also Chicago v. Taylor, 125 U.S. 161; Cooley's Coast. Lim., p. 54; Ib., p. 545 et seq., and numerous authorities there cited. Coast. Miss., art. i, §§ 2, 10.

While there is some conflict, the great weight of authority supports the right to recover of railroad companies where their tracks are laid in the public streets.

We ask the court to settle all the questions that are presented, including those applicable to cases in which the public owns the fee in the street as well as those in which only an easement is granted.

Murray F. Smith, for appellee.

The question presented in this case has never been adjudicated in this state. The nearest approach to a decision is Dannaher v. The State, 8 S. & M. 661. What is said there is obiter, but indicates that lotowners in a case like this have no right of action.

The weight of authority seems to be that the lotowner has a right of action, as I am fully aware, but I contend that these decisions are not based upon sound reasoning. To hold now, when thousands of streets are occupied by railroads, when there is scarcely a city or even a town of importance in this country without railroads on its streets, is to hold that the owner of land in platting his property and dividing it into lots and streets is not presumed to expect that at some day a railroad may be constructed on one or more of these streets. If the owner is not presumed to dedicate the streets for any such purpose, then we are to conclude that all towns are laid off with a view to having communication with the balance of the world by the old methods of travel and transportation only.

Mr. Dillon in his work on Municipal Corporations (§ 725), while stating that the weight of authority supports the view that would give a right of action in this case, says it deserves further consideration whether the power of the legislature over the uses to which highways may be put is really subject to this supposed constitutional limitation. And he adds: "Although the decisions as to the power of the legislature in such eases to authorize street railways without compensation to the adjoining freeholder are conflicting, it is believed that such railways, as ordinarily constructed and used, do not create a new burden upon the land, and hence the legislature is not bound to, although it may, provide compensation to the adjacent proprietor."

Pierce, in his work on Railroads (p. 234), adopts the view that a railway on a highway is not necessarily a different use, and, therefore, that the abutting owner has no right of action.

The supreme court of the United States, in Barney v. Keokuk, 4 U.S. 340, says that a street, "may be occupied by those important iron ways for public passage which modern skill has provided and which the advance of general improvement requires." After commenting on horse railroads, the court then uses this language: "So other railways coming to cities add greatly to their wealth and population and furnish greatly increased facilities of communication with other portions of the country."

In the case of Philadelphia v. R. R. Co., 6 Wharton 25 (s. c. 36 Am. Dec. 202), the court uses this language: "Even agreeing that this grant extends to the middle of the street, the public has a right of way over it. Neither the part used for the street nor the part occupied by himself is taken from him; and, as it was dedicated to public use without restriction, he is not within the constitutional prohibition, which extends not to matters of mere annoyance. The injury of which he can complain is not direct, but consequential. It consists either in an obstruction of his right of passage, which is personal, or in a depreciation of his property by decreasing the enjoyment of it; but no part of it is taken from him and acquired by the company."

In the case of Macomber v. Nichols, 34 Mich. 212. (s. c. 22 Am. R. 522), Judge Cooley, in delivering the opinion of the court, says: "When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods; and it cannot be assumed that its use will be the same from age to age, or that new means of making the way useful must be excluded, merely because their introduction may tend to the inconvenience or even the injury of those who may continue to use the road after the same manner as formerly. A highway established for the general benefit of passage and traffic must admit of new methods whenever it is found that the general benefit requires them; and if the law should preclude the adaptation of the use to the new methods, it would defeat, in greater or less degree, the purposes for which highways are established. * * * The law cannot define what exclusive means of transportation and passage shall be used. Universal experience shows that this can best be left to the determination of the municipal authorities, who are supposed to be best acquainted with the wants and necessities of the citizens generally. To say that a new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because streets were not so used in the days of Blackstone, would hardly comport with the advancement and enlightenment of the present age." See also Moses v. R. R. Co., 21 Ill. 522; R. R. Co. v. Newark, 2 Stockton (N. J.) 352; Attorney-General v. R. R. Co., 4 C. E. Green (N. J.) 386. In this last case the court plainly indicates that if the railroad company had been given the legislative authority, it could have laid its track upon a dedicated street.

In R. R. Co. v. Applegate, 8 Dana 28, the supreme court of Kentucky held that the construction of a railroad upon a street under municipal and legislative sanction was not a nuisance, and that the abutting landowner could not enjoin.

Perry v. R. R. Co., 55 Ala. 413 (28 Am. R. 740), is a well considered case in which an elaborate review of the authorities is made, and the conclusion is reached that the owner of an abutting lot on a dedicated street has no right of action. The decisions of that court have always been held in high esteem by our supreme court and by the profession.

All the authorities, so far as I have found, hold that where the fee of the street is in the city, a railroad can lawfully be constructed thereon, where legislative authority is given, or where the municipal authorities, under a power in the charter, grants the...