Hanbury v. Woodward Lumber Co.

Atkinson, Justice. We are not now to consider whether in a proceeding to condemn as for a public way the property of the citizen the public acquires a greater interest in the property condemned than is necessary to the enjoyment of the right of way; nor are we to inquire whether in such a case the public would be authorized to impose upon the land seized to public use [58] a servitude other than that for which it was condemned. Condemnation proceedings operate upon the unwilling, and of necessity are construed most strongly in favor of the person whose property is being seized. But in the present case we are to deal with tire rights of the parties claiming the right to use the tract occupied as a street as parties willing to contract, and who by contract have actually settled for themselves the details of the agreement upon which their rights rest. The original owner of the property caused the same to be platted and laid off into lots, with intervening streets. Tie did not leave to the determination of the law whether in this act he intended to devote the latter to a public use, but on the contrary, by solemn covenant expressed in writing, he declared that he dedicated and set apart for all time to come the streets included in such plat, primarily for the special use, benefit and convenience of the persons who might thereafter purchase, own or occupy any of said lots, and incidentally for the general use of the public. Under this act of dedication tire municipal authorities entered, took possession of and improved the particular street in question. The owners of abutting lots desire to lay a railroad track across this street, connecting their premises, and the municipal authorities, conceiving that such structure will in no xxx anner interfere with the reasonable exxjoyment by the public of its right of way, have consented. Private individuals owning other lots abutting at another point on the same street and upon other streets embraced in and covered. by the same act of dedication, prayed injunction, and insist that under the px*ovision of our code, section 719, the municipal authorities caxxnot authorize the construction of the proposed x’ailroad tx’aclc across the street in question. It will be seen that the code provision in question relates to the appropriation of a public highway by a railroad company; and it must be conceded that if this was an ox’dinaiy highway and it was the pxxx’pose of the railx’oad company to ap [59] propriate it or any part of or interest in it to its own corporate use against the will or without the consent of the governing body of ihe city, it could not be done, neither could it lawfuly appropriate the property of a private citizen without express charter authority; but in either case, we know of no reason why, if the person whose property is desired for that purpose could lawfully and should consent to its appropriation, any legal obstacle would arise which would prevent it. Tn order to determine the rights of the parties, it is necessary to inquire as to the extent of the interest acquired by the city under the act of dedication in the present case, and, determining that question, we will further inquire as to the relative interests of the abutting lot owners. It would have been possible for the owner in the net of dedication to have conferred upon the city authorities the fee to the streets, in which event the right of the abutting lot owner would have been limited to its uses as a mere way; he would have had no right or interest beyond that which the general public was entitled to enjoy. But the city authorities contented themselves with an acceptance of the mere incidental general public use, in subordination to any other consistent right of the abutting lot owner, to whose special use in the same public act of appropriation the streets had been devoted for all time to come; and for this reason the city acquired no greater interest in the premises so set apart as streets than was necessary to the reasonable and proper exercise of the incidental right of way conferred upon the public in the act of dedication. The effect of the creation of the easement in the city and the dedication of the land in question to the special use declared for an indeterminable period of time, was to pass the fee to the abutting lot owner and give to him the right of any free and uninterrupted use which would be consistent with the exercise by the public of its general right of way. We thus conclude that, under the act of dedication in the [60] present case, the abutting lot owner and the city authorities each represented separate interests. The primary use declared in favor of the abutting lot owner is necessarily secondary to the incidental use of the general public, of whom abutting lot owners upon the same and other streets covered by the act of dedication constitute a part. For the general use being declared, it can only be carried into execution by making the special use in favor of the lot owner subordinate. to what in the very nature of things must be the dominant servitude in favor of the public. And it is a rule of construction of universal acceptance, that where separate uses are declared in the same instrument, it must be so construed, if possible, as that both may stand, and thus give full expression to the intention of the grantor. So construed, this writing declaratory of the purposes and scheme of the dedication gives to the public what the donor intended — the right of way for its use, and to the lot owner the privilege of exercising any right not inconsistent with the right bestowed upon the public. Thus construed the uses declared are consistent and may legally coexist. The public accepts a qualified interest. To what extent the owner of the fee may appropriate to his own use those other incidental rights not conflicting with the public use, is necessarily a matter resting primarily with the city authorities, and is referable to the broad discretionary powers conferred upon them in the conduct and management of the public ways. He may be permitted to lay gas and water pipes or drains under the roadway, and do many other acts for his oavu advantage, provided the use of the public is not impaired. Whether or not such uses could be enjoyed without prejudice to the public right is, as we have said, primarily a matter for the consideration of the city authorities, and if they conceive that the proposed right of the abutting lot owner may be safely exercised without exposing to inconvenience or jeopardy the easement of the public, an injunction against the exercise of such right, at the suit of [61] private citizens not the owners of property abutting upon that portion of the street sought to be devoted to the particular private use, will not be granted. In respect to this matter the authorities represent the public, and their consent is a sufficient warrant for upholding the judgment, that the entry of the owner of the fee was not per se wrongful. In the present case the parties sought to be enjoined were, the one a railroad company, the other a manufacturing company. They owned lots opposite each other and abutting upon the street in question. The latter desired the construction of a spur-track so as to connect the two lots, and thus give it connection with the other company’s railroad. They each agreed to this, and the municipal authorities consented, by resolution declaring that the public would suffer no inconvenience from the construction of the proposed track. We think, inasmuch as the city authorities held only an easement to the extent of a right of way, that there was no abuse by them of their discretion in allowing the owners of the fee the uses of the street for the purposes above mentioned. ' It was a valuable right to the owner of the lot. Proper precautions were taken to protect the interests of the public, and there is no reason why he should have been deprived of that right. Of course we cannot undertake to say that the proposed track may not hereafter, either because of the manner of its construction or the manner of its use, become a nuisance and subject to abatement as such. An increase in population or travel may bring about such a result. But under the present record, we hold that in favor of the owner of the fee in the street the city authorities had the power' to' authorize a joint enjoyment of the property, and that their discretion was not abused when it was determined that the proposed use by the owner of the fee was not inconsistent with the exercise by the public of its dominant right of way. Judgment affirmed.