Union Pacific Railway Co. v. Foley

Mr. Justice Goddard delivered the opinion of the court. This is an action to recover damages occasioned by the unauthorized use, by appellant, of -a public street in front of appellee’s premises. It is conceded that the railroad company’s tracks were lawfully in the street, and that the company had the right to operate its cars thereon for ordinary railroad purposes. The grievance complained of is stated as follows: “ For six years past defendant has had three-rail track for standard and narrow gauge cars along Wynkoop street, a public highway between Eighteenth and Nineteenth streets, in Denver, which for that period it has used almost daily for moving cars on, and for standing, loading and unloading, and cleaning cars, so that said tracks and streets have been almost continuously occupied by cars of defendant so that access from one side of said street to the other has been rendered impossible; that said railway at said point during all of said time has not been used by defendant for ordinary railroad purposes, but has been converted into a yard, and thereby the use of said street as a public highway has been obstructed by defendant. That plaintiff is and since April 14, 1883, has been the owner in fee of lots 16 and IT in block D, in East Denver, fronting 50 feet on Wynkoop street between 18th and 19th streetsl That freight cars during past 6 years have been almost continuously left standing on said track, in front of plaintiff’s premises, and have been loaded and unloaded on wagons standing between the cars and said lots, thus preventing teams from passing and repassing in front of said lots, whereby the use of said street has been rendered dangerous and inconvenient and plaintiff has been damaged in the sum of $5,000.” [282] No cause for recovery is predicated upon the occupation of the street by the tracks of defendant company, or the operation of its cars thereon for ordinary railroad purposes; bu the gist of the cause of action is the wrongful use of the street for loading and unloading cars in front of plaintiff’s premises, and thereby shutting off all access from across the street and obstructing public travel by rendering the same dangerous and inconvenient. Such wrongful use of a public street may constitute a nuisance that might injuriously affect the right that plaintiff has therein as an owner of lots abutting thereon, and cause him special private damages recoverable under proper averment and proof. But, waiving the question whether the complaint herein is sufficient to sustain a recovery at all, as it is not raised by counsel for appellant, we are clearly of the opinion that the court below erred in refusing instruction numbered 6, as prayed for by appellant. From the evidence introduced it appears that cars of the defendant company were loaded and unloaded and cleaned along the entire length of block D, as well as in front of appellee’s lots. The appellant asked the following instruction, which was refused: “ No. 6. The court instructs the jury that they are not to consider in any way the use of Wynkoop street and the track therein by defendant, whether proper or not, except only so much as is directly in front of plaintiff’s premises; and if plaintiff is entitled to recover at all, it will be only for damages suffered on account of the improper use of that part of said street which is immediately in front of said premises.” It is settled in this state that the unlawful obstruction of a public street more or less remote from abutting property, if it causes a special injury thereto, entitles the owner of such property to a recovery therefor. Jackson v. Kiel, 13 Colo. 378. But the application of this principle is not invoked by the pleadings and evidence in this case. There is no allegation or proof that the obstruction of other portions of Wynkoop street not in front of plaintiff’s premises caused him any special or peculiar damage, or any incon [283] venience that was not shared by the public generally. It in no way appears that ingress or egress to or from the property was cut off or materially affected by loading or unloading cars at such other points, and the damage, if any, was caused by the wrongful use of the street in front of plaintiff’s property. We think the recovery should have been thus limited, and the refusal of the court below to do so was an error prejudicial to appellant, and entitles it to a reversal of the judgment. Reversed.