Moses v. Pittsburgh, Fort Wayne & Chicago Railroad

Caton, C. J. By its charter this company was authorized to bring its road to Chicago, and to acquire property within the city. By this it was intended to allow the road to run into the city. It was not the intention that it should be compelled to stop so soon as it touched the city limits, and thus render the road comparatively useless both to the public and the company. The language of the charter requires no such limited construction, and the objects of the law would be evidently frustrated by so illiberal an interpretation. But the complainant is the owner of property on Beach street, and the Common Council of the city have authorized the defendant to lay down its track through the centre of that street, and to run its cars and locomotives over it; whereby the complainant’s property will be injured, for which he has received no compensation; and he asks an injunction to restrain the defendant from exercising the right thus granted. By the city charter the Common Council is vested with the exclusive control and regulation of the streets of the city, the fee simple title to which we have already decided is vested in the municipal corporation. The city charter, also empowers the Common Council to direct and control the location of railroad tracks within the city. In granting this permission to locate the track in Beach street, the Common Council acted under an express power granted by the legislature, so that the defendant has all the right which both the legislature and the Common Council could give it, to occupy the street with its track. But the complainant assumes higher ground, and claims that any use of the street, even under the authority of the legislature and the Common Council, which tends to deteriorate the value of his property on the street, is a violation of that fundamental law which forbids private property to be taken for public use without just compensation. This is manifestly an erroneous view of the constitutional guarantee thus invoked. It must necessarily happen that streets will be used for various legitimate purposes, which will, to a greater or less extent discommode persons residing or doing business upon them, and just to that extent damage their property, and yet such damage is incident to all city property, and for it a party can claim no remedy. The Common Council may appoint certain localities, where hacks and drays shall stand waiting for employment, or where wagons loaded with hay or wood or other commodities shall stand waiting for purchasers. This may drive customers away from shops or stores in the vicinity, and yet there is no remedy for the damage. A street is made for the passage of persons and property; and the law cannot define what exclusive means of transportation and passage shall be used. Universal experience shows that this can best be left to the determination of the municipal authorities, who are supposed to be best acquainted with the wants and necessities of the citizens generally. To say that a new mode of passage shall l^e banished from the streets, no matter how much the general good may require it, simply because streets were not so used in the days of Blackstone, would hhrdly comport with the advancement and enlightenment of the present age. Steam has but lately taken the place, to any exteri't, of animal power for land transportation, and for that reason alone, shall it be expelled the streets ? For the same reason camels must be kept out, although they might be profitably introduced. Some fancy horse or' timid lady might be frightened by such uncouth objects. Or is the objection not in the motive power used, but because the carriages are larger than were formerly used, and run upon iron, and are confined to a given track in the street ? Then street railroads must not be admitted—they have large carriages which run on iron rails and are confined to a given track. Their momentum is great and may do damage to ordinary vehicles or foot passengers. Indeed, we may suppose or assume that streets occupied by them are not so pleasant for other carriages or so desirable for residences or business stands, as if not thus occupied. But for this reason the property owners along the street cannot expect to stop such improvements. The convenience of those who live at a greater distance from the centre of a city require the use of such improvements, and for their benefit, the owners of property upon the street, must submit to the burthen when the Common Council determine that the public good requires it. Cars upon street railroads are now generally, if not universally, propelled by horses, but who can say how long it will be, before it will be found safe and profitable to propel them with steam, or some other power besides horses ? Should we say that this road should be enjoined, we could advance no reason for it which would not apply with equal force to street railroads ; so that consistency would require that we should stop all. Nor would the evil which would result from the rule we must lay down stop here. We must prohibit every use of a street, which discommodes those who reside or do business upon it, because their property will else be damaged. This question has been presented in other States, and in some instances where the public only have an easement in the street, and the owner of the adjoining property still holds the fee of the street, it has been sustained, but the weight of authority, and certainly in our apprehension all sound reasoning, is the other way. The bill was properly dismissed and we aErm the decree. Decree affirmed.