Gottschalk v. C., B. & Q. R. R.

Maxwell, J. The plaintiff is the owner of certain lots in block 83 in the city of Columbus, which abut upon the alley running through said block. The defendant, in pursuance of authority from the mayor and council, located and constructed a railroad in said alley, by reason of which the plaintiff claims that the lot in question is damaged or diminished in value in the sum of $475, and this action was brought to recover the same. The cause was referred by consent to a referee, who found as follows: First. That the plaintiff is the owner of fractional lots 7 and 8, in block 83, in the city of Columbus, Platte county, Nebraska; that she acquired title on the first day of June, 1861, and has ever since been in possession by herself or tenant. Second. That said fractional lots abut upon the alley and street in question in this action. , Third. That the city of Columbus, Platte county, Nebraska, is a city of the second class. — 552 — Fourth. That in January, 1857, the plat of the village of Columbus was duly laid off, acknowledged by the proprietor, filed, and recorded in the office of the county clerk of said Platte county, Nebraska, which plat included the parcels of ground in question, said plat showing the various streets and alleys therein, including the street and alley described in plaintiff’s petition. Fifth. That said city of Columbus is the successor of the village of Columbus. Sixth. That the Lincoln & Northwestern Railroad Company, an incorporation duly organized under the laws of the state of Nebraska, constructed a line of railroad into said city of Columbus. Seventh. That the city of Columbus, by an ordinance duly adopted, authorized said incorporation to construct its side track across said street and along said alley in question in front and alongside of the property of plaintiff. Eighth. That said ordinance contained a provision as follows: “The Lincoln & Northwestern Railroad Company shall be liable to pay all damages to private property which may be sustained by reason of this ordinance.” Ninth. That in pursuance of said ordinance, said Lincoln & Northwestern Railroad Company did construct its sidetrack across said street and along said alley in question, and in front and alongside of the said property of plaintiff, and that it has been built and maintained since August 1st, 1880. Tenth. That the Lincoln & Northwestern Railroad Company has leased said railroad, including said side track, for 999 years to the Burlington & Missouri River Railroad in Nebraska, an incorporation duly incorporated under the laws of the state of Nebraska, and said Burlington & Missouri River Railroad Company in Nebraska has consolidated with the defendant, a foreign corporation. Eleventh. That the defendant is and was at the trial — 553 — and of the bringing of this action maintaining and operating said railroad and side track. Twelfth. That plaintiff offered evidence to prove that she had sustained damages in the manner and in the amount as stated in her petition. Thirteenth. Defendant admits that it is liable in this action to the same extent as the Lincoln & Northwestern Eailroad Company would be liable had not said lease been made. CONCLUSIONS OF LAW. First. That the title to the fee of said street and alley in question is in the said city of Columbus. Second. That the said city of Columbus had the authority to authorize said railroad company to build and maintain its said track across said street and along said alley. Third. That the provisions of said ordinance, so far as the same relate to the street and alley in question, do not vacate said street and alley. Fourth. That the provisions of said ordinance do not enlarge the common law rights of plaintiff to damages or compensation. Fifth. That plaintiff is not entitled to recover compensation for the damages stated in the petition. Sixth. That judgment in this action should be rendered in favor of defendant for costs. The report was confirmed by the district court and the cause dismissed. The petition sets forth certain damages which the plaintiff claims to have sustained by reason of the construction and operation of the road. The defendant contends that as it had lawful authority from the city council to construct its road in the alley in question, therefore it is not liable, and as there is no direct physical injury to the plaintiff’s property shown, she cannot recover. — 554 — The title to streets and alleys in this state vests in the public. See. 83 of the corporation law, provides that, “if it shall be necessary in the location of any part of any railroad to occupy any road, street, alley, or public way or ground of any kind, or any part thereof, it shall be competent for municipal or other corporation or public officer or public authorities, owning or having charge thereof, and the railroad company to agree upon the manner and upon the terms and conditions upon which the same may be used or occupied, and if said parties shall be unable to agree thereon, and it shall be necessary in the judgment of the directors of such railroad company to use or occupy such road, street, alley, or other public way or ground, such company may appropriate so much of the same as may be necessary for the purpose of such road, in the same manner and upon the same terms as is provided for the appropriation of the property of individuals by the eighty-first section of this chapter.” Comp. Stat., 146. Sec. 21, Art. I. of the constitution of 1875, provides that, “the property of no person shall be taken or damaged for public use without just compensation therefor.” The constitution of Illinois contains a similar provision, and its proper construction was before the supreme court of that state in Rigney v. City of Chicago, 102 Ill., 64. In that case it appears that Rigney was the owner of a lot twenty-five feet in width and 100 feet in depth, fronting on Kinzie street, in the city of Chicago. On the front part of this lot there was a two-story frame dwelling. In 1874 the city constructed a viaduct along Halstead street and across Kinzie at their intersection, about 220 feet west of the plaintiff’s premises. In consequence of the construction of the viaduct all communication with Halstead street was cut off except by means of stairs, and the rental value of the plaintiff’s property was reduced from $60 per month to $23, and the property itself from $5,000 at the time of the erection of the obstruction to one-third of that amount, — 555 — after the construction. The court below directed a verdict for the city. There was no claim that Eigney’s possession had been disturbed or that any direct physical injury had been done to his premises by reason of the obstruction complained of. The grounds upon which recovery was sought were, that the city by obstructing the plaintiff’s communication with Halstead street by way of Kinzie street had deprived him of a public right which he enjoyed in connection with his property, and thereby inflicted upon him an injury in excess of that shared by him with the public at large, the action being brought to recover the excess. The action in this case is brought for the same cause. The case cited, therefore, is directly in point. The opinion contains an elaborate review of the authorities and particularly of the Illinois cases. It is there said: “Under the constitution of 1848 it was essential to a right of recovery, as we have already seen, that there should be a direct physical injury to the corpus or subject of the properly, such as overflowing it, casting sparks or cinders upon it, and the like; but under the present constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which by the common law would, in the absence of any constitutional or statutory provisions, give a right of action. “ As opposed to this view, appellee cites: Chicago, Burlington & Quincy R. R. Co. v.McGinnis, 79 Ill., 269. The facts of this case arose before the new constitution, and consequently its construction was not involved in it; besides there is nothing said in it that militates against the view here expressed, but on the contrary, so far as that case has any application to the one before us, sustains it. “ The case of Stetson v. The Chicago & Evanston R. R. Co., 75 Ill., 74, is relied on for the same purpose. The question presented by that case was, whether, where a rail — 556 — road company under authority from a city has located its track upon a public street, a bill in equity will lie at the suit of any owner of lots abutting on the street to restrain the company from operating its road until the damages claimed to have been done to the lots by reason of the construction and operation of the railway are ascertained and paid; and it was held that such a bill would not lie, but that the party would be left to his action at law for whatever actual damages he may have sustained, the court having held that where there has been no actual taking of property and the company has constructed its track under authority from the city, chancery has no jurisdiction. What was said with respect to the character of the injury was not at all necessary to a decision of the case, and must be regarded as mere obiter. But even if this were not so,all that is there said may be harmonized in the manner we have stated with the previous and subsequent decisions of this court upon that question. “ In this connection the Chicago, Milwaukee & St. Paul R. R. Co. et al. v. Hall, 90 Ill., 42, is also cited. That case went off on a question wholly different from the one under consideration, and much of what we have said with respect to the preceding case is equally applicable to that. It is said in the opinion in that case, in referring to the character of the injury for which a recovery may be had, “the injury must be physical.” There is no particular objection to this language if taken in its more appropriate sense as we have already explained. But admitting the language was used in the sense claimed by appellee, it must be regarded as having been inconsiderately said, and not warranted by the previous decisions of that court. It is not reasonable to suppose that it was intended by the language there used to overrule without even a reference to them, the case of City of Pekin v. Winkel, 77 Ill., 56. Same v. Brereton, 67 Id., 477. City of Elgin v. Eaton, 83 Id., 535. City of Shawneetown v. Mason 82 Id., 337, — 557 — and Stack v. City of East St. Louis, 85 Id., 377, all of. which expressly hold that there may be a recovery for injuries other than those directly affecting the corpus or subject of the property, and in three of the cases the only injury complained of was in effect precisely like that complained of in the present case. The conclusion reached in all these cases is distinctly placed upon the ground that the new constitution has enlarged the right of recovery by extending its provisions to a class of cases not provided for under the old constitution, and to now turn round and hold, as we are urged to do, that the old test of direct physical injury to the corpus or subject of the property affected must still control as it did under the old constitution, would place this court in anything but an enviable position, and justly invite adverse criticism from an enlightened bar. “The question then recurs, what additional class of cases did the framers of the new constitution intend to provide for which are not embraced in the old? While it is clear that the present constitution was intended to afford redress in a certain class of cases for which there was no remedy under the old constitution, yet we think it equally clear that it was not intended to reach every possible injury which is necessarily incident to the ownership of property in towns or cities which directly impair the value of private property, for which the law does not and never has afforded any relief. Eor instance, the building of a jail, police station, or the like, will generally cause a direct depreciation in the value of the neighboring property, yet that is clearly a case of damnum absque injuria. So as to an obstruction in a public street, if it does not practically affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery, it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such — 558 — disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present* constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law. “The English courts, in construing certain statutes providing compensation for injuries occasioned by public improvements, in which the language is substantially the same as that in our present constitution, after a most thorough consideration of the question, lay down substantially the same rule here announced. Chamberlain v. West End of London Railway Co., 2 Best & Smith, 605. 110 E. C. L. R., 604. Id., 617. Beckett v. Midland Railway Co., L. R. 1 C. P., 241, on appeal, 3 C. P., 82. McCarthy v. Metropolitan Board of Works, L. R. 7 C. P., 508. These statutes required compensation to be made where property was “injuriously affected,” which the English courts construe as synonymous with the word “ damaged.” Hall v. Mayor of Bristol, L. R. 2 C. P., 322. East and West India Docks Co. v. Gattke, 3 McN. & G., 155. “ The rule we have adopted was unanimously sustained by the House of Lords in the McCarthy case, supra, and is believed to be in consonance with reason, justice, and sound legal principles, and while it has not heretofore been formulated in express terms, as now stated, yet the principles upon which the rule rests are fully recognized in the previous decisions of this court, particularly in City of Shawneetown v. Mason, 82 Ill., 337. City of Pekin v. Brereton, 67 Id., 477. Chicago & Pacific R. R. Co. v. Francis, 70 Id., 238. City of Pekin v. Winkel, 77 Id., 56. City of Elgin v. Eaton, 83 Id., 535.” In Beckett v. The Midland Railway Company, 3 Com — 559 — mon Pleas L. R., 81, the action was brought to recover damages under the lands clauses consolidation act and railways clauses consolidation act, which provide for damages where land is “injuriously affected.” In that case the road in front of the plaintiff's house, which had formerly been fifty feet in width, had been narrowed, by means of an embankment made by the defendants upon a portion of it, to thirty-three feet. There was testimony tending to show that the light in the lower portion of the house had been sensibly diminished, and that the narrowing of the road was a great discomfort, and occasioned inconvenience by reason of carriages being compelled to go to some distance beyond the gate before they could turn. The case was tried below before Cockburn, Ch. J., who left it to the jury to say whether there had been any diminution of light or of air by reason of the embankment, or any diminution in value of the plaintiff's house by reason of the contracting of the road in front of it. The jury found in the affirmative on both questions and returned a verdict in favor of the plaintiff for £802, upon which judgment was rendered. The judgment was affirmed in the appellate court. In the case of Mollandin v. Union Pacific Ry. Co., 14 Federal Reporter, 394, the United States Circuit Court for Colorado gave a construction to a clause in the constitution of that state similar to our own, and the case of Rigney v. Chicago was cited and approved. Sec. 13 Art. I. of the constitution of this state, of 1866, provided that, “The property of no person shall be taken for public use without just compensation therefor.” In our present constitution this section was amended by adding the words “ or damaged.” Under our former constitution if any portion of the real estate injured was appropriated, the law allowed full compensation for the injury, but if no part thereof was taken no damages could be recovered, however great the injury to the property. This being the state of the law at that time, what was the object of the amend — 560 — ment spoken of? In the case cited from Illinois it was held that the words “or damaged” were equivalent to the words “injuriously affected” in the English statute, and we think that' construction is correct. The constitutional provision therefore is, that private property shall not be taken or injuriously affected without just compensation therefor. The evident object of the amendment was to afford relief in certain cases where, under our former constitution, none could be given. It was to grant relief in cases where there was no direct injury to the real estate itself, but some physical disturbance of a right which the owner possesses in connection with his estate, by reason of which he sustains special injury in respect to such property in excess of that sustained by the public at large. To this extent the property owner is entitled to recover. It is not necessary to entitle a party to recover, that there should be a direct physical injury to his property if he has sustained damages in respect to the property itself whereby its value has been permanently impaired and diminished. This is but justice. While public improvements are essential to progress and to the welfare of the race, yet as the public are to receive the benefits, whether by the opening of streets and public grounds or by the construction of railways, the party receiving the benefit should bear the burden. This should not be cast upon others. The question of the amount of damages is one of fact for the jury, and cannot be determined in the first instance by the court, and does not arise in this case. As, in our opinion, the petition states facts sufficient to show that the plaintiff in respect to the real estate in question has sustained damages in excess of that shared by her with the public generally, therefore to the extent of such damages she is entitled to recover. The judgment of the district court is reversed and the cause remanded for further proceedings. Reversed and remanded. Cobb, J., concurred.