Ashland & Catlettsburg Street Railway Co. v. Faulkner

JUDGE BURNAM delivered the opinion or the court. This suit was instituted by appellee against appellant, the Ashland & Catlettsburg Street-Railway Company, for damages arising from the location and operation of its road. He claims to be the owner of a lot of ground fronting the Ashland & Catlettsburg turnpike road, on which he had erected a frame building forty-two feet long and sixteen feet wide, in which he did business as a saloou keeper; that, in the construction of the building, he had. left an intervening space of about ten feet between the front of the building and his property line on the east side of the turnpike road, and that, 'for the convenience of his patrons, he had constructed in this opein space a well, put up a water trough, and laid down a platform 10x16 feet, on which wagons and other vehicles could stand when stopping in front of his saloon; that, as a result of these conveniences, his business was rendered profitable from the patronage of travelers upon this highway; that the appellant, forcibly and without right, took possession of a portion of that part of his lot which was next to and adjoining the turnpike road, and had built and was operating an electric street-ear line thereon. And, by the second paragraph in his petition, he alleges that appellant had wrongfully constructed its line of street railway on the turnpike — 336 — road, so close to Iris property as to obstruct bis ingress and egress from his property to the public highway. It will be observed that the appellee seeks damages— First, for the illegal appropriation of a part of his lot; and, second, damages which result from building the street railway on the land of the turnpike company so close to his building as to materially injure his use of the turnpike. Pleadings being made up, the trial of the case resulted, under instructions given to the jury, in a verdict for appel•lee for $G65, the basis of the recovery being both elements of damages (‘numerated above; and we are asked to reverse that, judgment. The court, on motion of plaintiff, instructed the jury, first, that “if they believed from the evidence that the plaintiff, John Faulkner, was the owner and in possession of the property in controversy, and that the defendant, the Ashland & Catlettsburg Street-Railway Company, while plaintiff was the owner and in the possession of said property, by its officers, agents, or employes, entered upon said property, and constructed its line of street railway in froint thereof on said property, the law is for the plaintiff, and the jury will so find.” And, in fixing the measure of compensation under the state of case contemplated in the first instruction, the jury were told by instruction No. 3 that, “if they believed as in instruction No. 1, they will find from the evidence the market value of the entire tract of land just before it became generally known that the street railway was to be constructed in front of it, and find the value of the ground taken and occupied by it for all the purposes for which it was adapted, and to this sum they will add the amount, if any, they believe from the evidence the remainder of the tract is diminished by reason of the construction and operation of defendant’s road.” — 337 — On the issues raised by the second paragraph, the court instructed the jury that “if -they did not believe from the evidence, and find as in instruction No. 1, but believed from the evidence that the defendant constructed its track upon the Ashland & Catlettsburg Turnpike Road, so close to plaintiff’s property as to unreasonably interfere with the ingress and egress to and from said property, the law is for the plaintiff, and the jury will so find.” And in defining the measure of compensation, if they found the facts to be as set out in instruction No. 2, they were told to find from the evidence the value of plaintiff’s property just before it became- generally known that the defendant’s railway was to be located in front of plaintiff’s property, and then determine what proportion of the value is taken from the property by reason of the construction and operation of defendant’s road, and such proportion would be the amount of damage. The proof in the record shows that the east rail of the street-railway track is about seven feet from appellee’s building; that the track at that point was laid down at grade on the road, and that the only elevation was the height of the rails, two or three inches; that the road between the rails was ballasted with gravel; that a crossing of three-inch plank was put on each side of the track, twelve or fifteen feet long, making a good crossing where wagons and other vehicles could pass over or be backed in across the track at that point to appellee’s house from the turnpike road on the west side of the railway track; atad that appellant’s road was built on the east side of the turnpike road. There is no proof which conduces to show that the approach to appellee’s property has been interfered with by the building of the road, except — 338 — by its proximity to the building, and that it is a new use of the street at that point, which, in some degree, interferes with appellee’s use. The question before us, therefore, is, was there such obstruction as to authorize recovery on this branch of the case? If the diminution in the value of appellee’s property arose solely by reason of the location of the road in front of his property, this of itself furnishes no ground of complaint, as the whole trend of modern authorities is to the effect that the operation of a street railway is a legitimate use of the highway, and an exercise of the public right of travel. They are but a means of using the public streets to a greater advantage for the very purpose for which they were laid out, and are recognized as the best and cheapest mode yet deA-ised of getting about in a city, and do not impose any new or additional burdens for which abutters are entitled to compensation, unless they be so constructed as to deprive the abutter of some easement, or in some way cause him special damage for which he is entitled to recover, as they do not hinder the use of the rest of the sireet for the public travel, and in but a very small degree obstruct travel on the part occupied by their tracks. (See Wood on Railroads, 748, and authorities there cited, and Elliott on Railroads, vol. 3, 1635.) On this point Judge Dillon says: “The appropriation of a street for a horse railway, and used in the ordinary mode, is such a use as falls within the purposes for which the street was dedicated or acquired under the power of eminent domain.” (Dillon’s Municipal Corporations, (3d. Ed.), Sec. 722). Judge Cooley says: “When land is taken or dedicated for a town street, it is unquestionably appropriated fo.r all the ordinary purposes of a town street, not merely for the purposes 1o which such streets were' formerly applied, but those de — 339 — manded by new improvements and new wants. Among these purposes is the use for carriages which run upon a grooved track; and the preparation of important streets in the cities for their use is not only a frequent necessity, which must be supposed to have been contemplated, but is almost as much a matter of course as the grading and paving.” Cooley, Const. Lim., 556. As early as 1872 this question was thoroughly considered by the Court of Appeals of New York in the case of Killinger v. 42d Street St. Ry. Co., 50 N. Y., 206. In that case the plaintiff alleged that the track of defendant’s road was unnecessarily or negligently or willfully laid so near the sidewalk as to impair the use of his premises, and depreciate its rental value. The court held that “abutting owners have an easement in the street, in common with the whole people, to pass and repass, and also to have free access to their premises; but the mere inconvenience of such access occasioned by the lawful use of the street is not the subject of action.” The Supreme Court of Pennsylvania has also thoroughly considered this question in the case of Rafferty v. Central Traction Co., 147 Pa. St., 579 [30 Am. St. R., 763; 23 Atl., 884.] This was an injunction suit to prevent the laying of rails on a street in such proximity to the curb as to interfere with the ingress and egress of the abutting property holders, and the rights of such property holders were exhaustively discussed by the court. It was claimed by the plaintiffs that their right of free access to their property along the street was interfered wjith because vehicles could not stand between the tracks and the curbing without interfering with the oars. It was held that “the right of the property holder is not changed in this respect. He has the same right after the tracks are laid as he had — 340 — before. It is a right which must be exercised in reason, whether there are car-tracks on the street or not. In no circumstances does it confer the privilege of obstruction by unreasonable use, but the reasonable exercise of the right gives the street car company no right to arrest it;” the .court finally holding that “the operation of a street railway by electricity is not an additional servitude or burden on the land which will entitle the owner of property abutting on the street, to compensation, either by injunction for damages by the construction and maintenance of such a track. ... If at any time, the owner of property abutting on the street has occasion for the presence of vehicles in front of his property on the street to take away or deliver persons or goods, he may exercise that right for such reasonable time as is necessary for his purpose; and if, in the exercise of such right, the passage of street cars is impeded, the street cars must wait.”- In the case of Williams v. Railway Co., 41 Fed. Rep., 556, the court said: “The operation of a street railway by mechanical power is not an additional servitude or burden on land already dedicated or condemned to the use of a public street, and is therefore not a taking of private property, but is a modern and improved use of the street as a public highway, and affords to the abutting property holder, though he may owe the fee of the street, no legal ground of complaint.” In the case of Briggs v. Railroad Co., 79 Me., 363, [1 Am. St. R., 316; 10 Atl., 47], the court said: “We do not think any construction and operation of a street railway in a street is a new and different use of the land from its use as a highway. The laying down of rails in ¡the street and the running of street cars over them for the accommodation of persons desiring to travel on the street is only — 341 — a later mode of using the land as a way — using it for the very purpose for which it was originally taken.” In the case of Patterson St. Ry. Co. v. Grundy, 56 Am. & Eng. R. R. Cases, 456 [26 Atl., 788], the Supreme Court of New Jersey held that “abutting owners’ rights in a street in front of their property are subservient, unless such use imposes an additional servitude upon the land taken by the street or the abutting land; but when a public use, authorized by law, takes no property of the individual merely affecting him by proximity, the necessary interference with his business or the enjoyment of his pioperty occasioned by such use furnishes no basis for damages.” In the case of Detroit Street Railway Co. v. Mills (Mich.), 46 Am. & Eng. R. R. Cases, 616 [48 N. W., 1011], the court held that “street railways, when constructed so as not to interfere with the rights of others upon the streets, form no obstruction to such use and enjoyment. They make no more noise than the omnibus and other heavy vehicles, are not more dangerous, and no more interfere with access to the abutting lots. They constitute a modern and improved use only of the street as a public way;” holding that the abutting property owner would not be entitled to compensation' for such use, in the absence of a statute giving it or plain proof of such injury. In the case of Louisville Bagging Mfg. Co. v. Central Pass. Ry. Co., 95 Ky., 50, [44 Am. St. R., 203, 23 S. W., 592], this court said: “It is well settled that the use of a public street for travel a'nd transportation by means of railway cars falls within the purposes for which streets are dedicated; and it is only when other ways of travel and transportation are prevented or unreasonably obstructed that courts can interfere to either enjoin or limit the oper — 342 — ation of railroads upon a public street. . . . The trolley system of operating street cars, when properly adjusted, is not much, if any, more dangerous than horse power. . . . Moreover, while street-railway cars thus operated go at a greater rate of speed, and are more comfortable, and must in time become a cheaper mode of travel, they can be easier controlled than horse cars, and do not really more obstruct the street or interfere with business .transacted thereon.” This question has been so exhaustively discussed, both in cases and text-books, as to leave but little to be said; and the rule is that a street railway may be placed and operated upon any part of a public street of a municipal corporation which is used by vehicles without increasing the burden of the servitude, and the owner of the fee is not entitled to compensation because of such use of the street upon which his property abuts merely because he is affected by the proximity of the tracks to his property, without proof of special damage resulting therefrom. It. does not appear that there was such obstruction of appellee’s use of the public highway in front of his house by the railway as would justify recovery, if, as a matter of fact, the railway was built entirely upon the turnpike road. While it is true that there is not sufficient room between the tracks and the house of appellee for wagons and other vehicles to stand as they formerly did, there is nothing to hinder vehicles from being driven across the tracks at that point, or standing on the space between the rails, as cars pass there only at intervals of ten or fifteen minutes. Most of the witnesses who testify on this point state that there was no diminution whatever in the salable value of appellee's property resulting from the operation of the road, and no witness except appellee himself fixes — 343 — the damages as high as the verdict of the jury. The verdict is excessive, and palpably against the weight of the evidence, and the proof did not authorize the submission to the jury of the questions of fact embraced in instructions Nos. 2 and 4. But upon the question as to whether appellant had appropriated, for the use of its track, land to which appellee actually held the legal title, the proof is conflicting, and, in our opinion, this issue was properly submitted to the determination of the jury; but, as it is impossible to say how7 much the verdict of the jury may .have been affected by the other question, the judgment is reversed, and the cause remanded for proceedings consistent with this opinion.-