Briggs v. Lewiston & Auburn Horse Railroad

Emery, J. A strip of the plaintiff’s land in Auburn, had been lawfully taken by public authority for a public highway, and just compensation had been made to the owner therefor. The defendant company had subsequently constructed a street railroad, (commonly called a "horse railroad”) in this highway and ov-er the strip of land, thus taken from the plaintiff’s land. Early in 1885, the company lowered the grade of their rails on this strip, whereupon the plaintiff brought this action, alleging said acts of the defendant company to be a trespass on her land. All these acts of the defendant were within the limits of the highway, and were done under express license from the city council of Auburn, and from the Legislature. They would not therefore constitute any trespass on the plaintiff’s land, if such license conferred lawful authority. The plaintiff contends however ,that the license invoked in this case, has no validity and confers no authority because it undertakes to make a new and different use of her land, without providing a just compensation therefor. We do not think the construction and operation of a street railroad in a street, is a new and different use of the land from its use as a highway. The modes of using a highway strictly as a highway are almost innumerable, and they vary and widen with the progress of the community. When a highway is first established in some unfrequented locality, it may exist for a time as a rude road, with a narrow track, and only occasionally used. With the growth of population and business, and the transformation of the lonely neighborhood into a thriving, increasing city, the [367] highway may also go through the transformations of being turnpiked, planked, macadamized, and paved for its entire width. From bearing an occasional rude cart, it may come to sustain an endless succession of wagons, drays, coaches, omnibuses and other vehicles of travel and traffic. There is a continual march of improvement in streets and in vehicles. It cannot be that the land owner must be compensated anew, at each new improvement in street, or vehicle, or with every increase of traffic. All the land originally taken, was taken for a highway, and for all time, if needed, and the compensation was estimated on that basis. The taking and the payment were once for all. The public, at the first taking, acquired an untrammeled right of way over every part of the land taken, with full right to do all things upon the land to facilitate its use as a highway, and make it sufficient at'any time for the increasing need of the public for a highway. There is in such cases no stipulation limiting the public to any particular kind of road or vehicle. The laying down rails in the street, and the running street cars over them, for the accommodation of persons desiring to travel on the street, is only a later mode of using the land as a way, using it for the very purpose for which it was originally taken. It may be a change in the mode, but it is not a change in the use. The land is still used for a highway. The weight of authority is so manifestly in favor of this proposition, it is unnecessary to cite particular decisions. Our attention is called to the fact that this defendant company is authorized to use steam as a motor, on this same railroad, and we are cited to decisions of courts, holding that the ordinary steam railroad companies must make additional compensation to land owners — before taking a street for their railroads. The argument is, that however it may be as to horse railroads, steam railroads must make compensation. We do not think the motor is the criterion. It is rather the use of the street. If the railroad company exclusively occupy the land — shut off the street from it, deprive it of its character of bearing the easement of a street — use it, not for street traffic, but for what is known as railway traffic, the company may [368] perhaps he said to make a new and different use of the land. But we have no occasion now to express any opinion on that question. This defendant company is using the land as a street. Its railroad is a street railroad. Its cars are used by those who wish to pass from place to place on the street. A change in the motor is not a change in the use. If public authority can lawfully authorize the construction and operation of a street railway in a public street, without providing .for additional compensation to the land owner (as we think, it can), it can also lawfully authorize a change of grade for that purpose, without committing a trespass upon the land owner. The officers of municipalities, charged with the duty of making the streets safe and convenient, for the use of an increasing traffic, have large authority, and wide discretion in all matters of construction and improvement, including grades. It has been held, that the lowering the grade of a street by a person acting under municipal authority, and in good faith, without wantonness, is not a trespass against the laud owner. Hovey v. Mayo, 43 Maine, 332. In this case the lowering of the grade was done under t.he authority of the city council, and of the commissioner of streets. There is no suggestion of want of good faith. We think the plaintiff is confined to the remedy provided by statute, § 16 of city charter of Auburn — and § 68, of chap. 18 of R. S. These statute provisions will afford a remedy, if she be entitled to any compensation. She cannot maintain this action of trespass. Judgment for defendant. Peters, C. J., Walton, Virgin, Libbey and Haskell, JJ., concurred.