White v. Northwestern N.C. R. Co.

• Decision Date: 05 December 1893
• Citation: 18 S.E. 330,113 N.C. 610
• Parties: WHITE v. NORTHWESTERN NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

18 S.E. 330

113 N.C. 610

WHITE v. NORTHWESTERN NORTH CAROLINA R. CO.

Supreme Court of North Carolina

December 5, 1893

Appeal from superior court, Forsyth county; Boykin, Judge.

Action by Malvina T. White against the Northwestern North Carolina Railroad Company. Judgment for defendant. Plaintiff appeals. Reversed.

A steam railroad company's entry on a street not having been under statutory authority, but merely under license of a city, the abutting property owner is not confined to statutory remedy, but may maintain an action for damages.

E. B Jones, for appellant.

Glenn & Manly, for appellee.

SHEPHERD C.J.

The plaintiff is the owner of a lot abutting upon one of the streets of the city of Winston, and brings this action to recover damages for various injuries to her said property inflicted by the defendant by reason of its having entered upon and constructed its railroad through the said street. It appears from the complaint that prior to the plaintiff's purchase of the property, in 1879, the street had been "located and opened for the use and benefit of plaintiff and others, and the public generally, who owned property north of Liberty street, which was almost inaccessible by or over any other street." It also appears that in the construction of its road the defendant made an excavation in front of said property 223 feet in length, and 35 or 40 feet in depth and width, and thereby reduced the width of the street from 30 to 18 feet. It is further alleged that by "reason of the nature of the soil and the proximity of the cuts, travel along the said street is rendered dangerous and that, in order to sustain the width of the same 15 to 18 feet, the defendant has put in pillars or posts to hold and retain the earth composing the street in position, which plaintiff alleges is insecure and unsafe, and liable to destroy and render useless the said street." It is furthermore alleged that by reason of such excavation and occupation by the defendant the street at certain points along the line of plaintiff's property is almost entirely destroyed, and that plaintiff is greatly endamaged. These allegations, extracted from the complaint, must, for the purposes of the appeal, be taken as true, as no evidence seems to have been introduced on the trial; and his honor rejected the issue as to the alleged damages sustained by the plaintiff on the ground that the defendant "had a license from the city to construct its road, and use the street if necessary." The questions presented therefore, are whether, as against the abutting owner, the city can authorize the use of its streets for the purposes of an ordinary steam railroad, and whether such abutting owner has any proprietary rights, for the violation of which she can maintain an action. It does not appear how the city acquired its title to the street in question, nor do we learn from the record whether it owns the fee in the soil, or simply an easement therein. In the absence of evidence, however, the presumption is that the city has an easement only, and that the fee remains in the abutting proprietor. Elliott, Roads & S. 110; Rich v. City of Minneapolis, 37 Minn. 423, 35 N.W. 2; 3 Kent, Comm. 432. In such a case "the abutting owner is entitled to every right and advantage in that part of the street of which he owns the fee, not required by the public. The easement of the public is the right to use and improve the street for the purposes of a highway only." Lewis, Em. Dom. 113. It must follow, therefore, that if the city perverts the streets to illegitimate purposes, it is an interference with the proprietary rights of the abutter, and that he is entitled to relief at the hands of the courts.

This introduces us to the very important question, never before passed upon by this tribunal, whether or not the use of a steam railroad is a perversion of the street from its original and proper public purposes. There has been much discussion, and not a little conflict of judicial decision, upon this subject; but it is believed that the weight of authority greatly preponderates in favor of the affirmative view of the proposition. Judge Dillon, after a careful investigation, states his conclusion as follows: "The weight of judicial authority undoubtedly is that where the public have only an easement in the streets, and the fee is retained by the adjacent owner, the legislature cannot, under the constitutional guaranty of private property, authorize an ordinary 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. 725. In Mills on Eminent Domain (section 204) the same doctrine is laid down, and it is said: "The legislature may authorize the use of a street by the railroad, so as to make the entry lawful; but the use is an additional burden, and the right will not become fixed in the company until compensation is made. If no remedy is provided, there is remaining the remedy at common law." In Lewis on Eminent Domain (section 111) the able and discriminating author remarks: "To us it seems so clear that a railroad is foreign to the legitimate uses of a highway that we never have been able to understand how a court could reach a contrary conclusion." After stating that highways have from time immemorial been devoted to the common use of every citizen, and that no one had a private right or any exclusive privilege therein, the author proceeds: "The railroad does not fall within the scope of such uses. It requires a permanent structure in the street, the use of which is private and exclusive. It gives to an individual or corporation a franchise and easement in the street inconsistent with the public right. To hold that a railroad is one of the proper and legitimate uses of a street leads to the absurd consequence that a street might be filled with parallel tracks, which would practically exclude all ordinary travel, and still be devoted to the ordinary uses of a highway. The law ought not to tolerate such a consequence." In Elliott on Roads & Streets (page 528) the author cites many authorities, and concludes by saying that the weight of authority is that such an appropriation of a street is "a new and additional burden," for which the abutter is entitled to compensation. In support of his proposition he quotes the following language of Judge Cooley: "Neither can the use of the highway for the ordinary railway be in furtherance of the purpose for which the highway is established, and a relief to the local business and travel upon it. The two uses, on the other hand, come seriously in conflict. The railroad constitutes a perpetual embarrassment to the ordinary use, which is greater or less in proportion to the business that is done upon it, and the frequency of trains. When, therefore, the country highway or the city street is taken for the purposes of a railroad company engaged in the business of transporting persons and property between distant points, the owner of the soil in the highway is entitled to compensation, because a new burden has been imposed upon his estate, which affects him differently from the original easement, and may be specially injurious." Const. Lim. (3d Ed.) 683. In Hare, Const. Law, 361, the foregoing doctrine is fully approved, and it is said: "It is immaterial, as regards the principle, whether the land is given voluntarily or taken under the right of eminent domain. If the owner dedicates the land, it is for the continuing uses of a street; if it is condemned, such also is the end in view. To convert a common highway over a man's land into a railroad is, therefore, to impose an additional burden upon the land, which greatly impairs its value, considered as a whole; and if the owner is not compensated his consent must be proved. It cannot be said with truth that in assenting to the laying out of the highway upon his land he consented to the building of a railroad upon it, because they are essentially different. The one benefits his land, renders access to it easy, and enhances the price; while the other makes access to it difficult and dangerous, and renders it comparatively valueless. Nor can it be justly contended that a railway is merely an improved highway. *** Were the transaction between individuals, every one would see the injustice of such a conclusion. The doubt arises from the supposition that the public interest is involved; and it was to guard against the bias arising from this source that the constitution interfered to protect the citizen. It follows that the dedication of land as a street does not preclude the owner from bringing trespass or ejectment or obtaining an injunction against a railway company which is about to enter upon and occupy the way, and that the company cannot (in the absence of the exercise of the right of eminent domain) rely upon a grant from the legislature and the license or consent of the municipality as a justification." Booth, in his work on Street Railways, (section 78,) after stating that in the early history of commercial railroads the current of authority was contrary to the views above stated, remarks: "But, according to the weight of judicial opinion as expressed during the last thirty years, where the fee of the street remains in the adjoining owner, such use is inconsistent with the purposes of the original acquisition, and, without compensation, can only be acquired by the exercise of the power of eminent domain."

In the discussion of the question, we have preferred to reproduce the conclusions of eminent text writers, rather than attempt a review of the numerous decisions upon which they are founded. These decisions and others we could cite fully...