Tilton v. New Orleans City Railroad

■ The opinion of the Court was delivered by Bermudez, C. J. This is an injunction suit coupled with a prayer for damages, to prevent the defendant Company from running and stationing their steam cars and trains in front of the residences and stores of plaintiffs, on Canal street in this City, between Rampart street •and Bourbon and Carondelet streets, the last two meeting and intersecting the first named street.- The grounds upon which the injunction is claimed are : that the strip of ground, on which the cars run and station, in the centre of the space ■between the buildings, fronting on- each 'external line of the double ■'street, and commonly known as the “ neutral ground,” was dedicated •by the City to public use as a street and promenade; that the plaintiffs, having acquired their property from the City with reference to such dedication, have a vested right therein and cannot be divested ■thereof by the City; that the defendants are thus operating their train's without legal authority; that the use to which said strip of land was 'and is thus devoted, is an intolerable nuisance, greatly prejudicial to the plaintiffs in their persons, and detrimental to the value of their ■'property '; that they, the plaintiffs, are entitled to have such nuisance abated and to claim damages for the injury sustained. The petition ■concludes with a prayer that an injunction issue and be perpetuated, and that the plaintiffs recover forty-five thousand dollars damages, to accrue to them in different proportions. " After a hearing on the face of the papers, an injunction was allowed, ■'which was subsequently dissolved on bond. ■ The answers contain a denegation of the pretensions and charge's preferred, particularly of a want of authority to the right of way and ■of running the steam cars, on the strip of land in' question, and of the 'truth of the complaint that the exercise of such privilege has resulted ‘into an intolerable nuisance. The defendants further plead, that the ■plaintiffs are not entitled to an injunction, and that their money claim 'is barred by prescription. ' From a judgment dissolving the injunction and rejecting their demand, the plaintiffs have appealed. — 1066 — The fact that the defendants run and station steam ears and trains, as charged in the petition, is not disputed. The right of the plaintiffs to complain, if the running and stationing are unauthorized, and if the same are an intolerable nuisance, cannot be questioned. The parties litigant have raised, argued and submitted many issues, only two of which we think should be determined, to set their differences at rest. They are : 1. Have the defendants legal authority to run and station their cars as they do ? 2. If they have such authority, is the exercise by the use of steam of the right thus acquired a nuisance which should be abated? I. The record shows that, on the 22d of August, 1876, by Ordinance 3617 A. S., the City Council gaye a permission, revocable at pleasure, to the Company to run their cars between Basin and Carondelet streets ; that, on the 15th of June, 1830, this permission was recalled by Ordinance 6528. It was renewed on the 3d of March, 1881, by Ordinance 6891, at the request of a large number of citizens styling themselves property holders and residents on Canal street, and authority giv.en the Company to extend its track from Basin to Carondelet streets. The municipal authority to thus use the neutral ground is so clearly given, that, but for the denial of the power of the council to make the concession, the first question would be of easy solution. The plaintiffs contend, first, that the City had no right to grant the privilege of way; because: A. The strip of land on which the cars are run and station, was dedicated to special public use; because B. The City has no right to change the destination of a public place thus consecrated. It appears that the United States having acquired, by the treaty of cession of Louisiana, the property known and designated as the “ commons,” donated the same in 1807 to the City of New Orleans, with the conditions: that a reserve would be made of a strip through a portion of the same, sufficient for a canal, to enable the New Orleans Navigation Co. to connect its canal and basin with the river, and that the same would forever remain open as a public highway. The space in question measuring 42 feet, French measure, was that selected for the purpose. In 1809, the City authorities caused the commons to be divided into blocks and lots. Many were sold for ground rents. The titles describe them as fronting on a projected road up to the line reserved, upper or lower, for the Navigation Company. — 1067 — In 1809, twenty-seven lots remaining unsold on Canal street, a plan was made of the same by the then City Surveyor, Pilie, which, by resolution of the Couucil, was to serve as a guide for the ordered sale. That plan shows that the space between the blocks on the upper and lower sides of Canal street, was thereon designated as “ Rue et Promenade du Canal.” The lots of two of the plaintiffs figure on that plan. In 1838, an attempt being made to excavate a canal on that middle space, it was arrested by the populace, who thought that the excavation would affect the public health, and the excavated spots were filled. In 1842, the rights of the Navigation Company to the neutral ground were seized, offered for sale and adjudicated to the City of New Orleans. In 1847, in the case of French vs. N. O., C. R. R. Co., 2 An. 87, passing allusion was made to old Canal street by this Court, and it was there said : “ That street was laid out as a single street, and the proprietors, on both sides, purchased their lots with reference to that destination. The authority given to the Company to extend their canal through the middle of it was a change of destination' of public property, not a divestiture of private ownership.” There can be no doubt that, from the beginning, the whole of the space was dedicated to public use. A strip, in front of the blocks, on each side, at first, 11 feet, presently, 18 feet wide, was devoted as sidewalks j then, two other contiguous strips of a certain width were laid out and used as streets, leaving between them the strip, forty feet wide, known as the “ neutral ground,” upon which the steam trains of the defendant Company and the horse cars of several other companies are run and station. That dedication was, therefore, originally for the purpose of a contemplated canal and side streets, and subsequently, for “a street and promenade.” The question which next presents itself is, whether that dedication has been changed, by the City, and if so, whether the City had the right to do so, and whether the plaintiffs can be heard to complain. The evidence does not show that the neutral ground in question has absolutely ceased to be a “promenade.” The word is used without any limit, and means, as well, promenade ápied, á cheval, as en voiture, or any other, subject -to municipal regulations. ’ The well known “ Promenade des Champs Elysées,” in the great French metropolis, is used for all three purposes. The strip of land in question is not enclosed, either on its sides, or at — 1068 — its intersections, by the several streets. Citizens are free to walk across or along it, at their discretion or option. It, therefore, remain^accessible at all points. • The evidence does not show that it ever was used exclusively, if at all, as a pathway, or promenade á pied. It appears that, for a long While, it served as a place of deposit for.rubbish, building materials and other purposes, which obstructed its use. . Par from establishing that the City has changed its destination, by destroying or affecting its public character and converting it to private conveniences, the proof is, that the City has, by her administrators, employed this comm'on property for the greater good of the whole community. R. C. C. 458. The City, it is of public notoriety, has, for upwards of twenty years, expressly permitted .the use of this neutral ground for street car purposes, for the greater benefit and advantage of citizens travelling in different directions, not only-without a murmur from anyone, but to the entire satisfaction of all. :,-The City had authority to do so. It is well settled, by law and precedents, that the City has a supervision and control over all streets public places and other public property within her limits, and may regulate the use thereof. . In 1859 the question was presented to this Court, whether the City had the power to sell.the right of way for the establishment of a railroad, through its streets. It was determined in the affirmative, in a well considered and elaborate opinion, which was since followed: Brown vs. Duplessis, 14 An. 842; Board vs. City, 32 An. 915. -. In the late case of Harrison, 34 An. 462, the present Court had occasion- to review a similar or identical question. Supported by many authorities, from which copious extracts are embodied in the opinion, the Court held, that the doctrine is well settled that the legislature can delegate to a municipal corporation the power of authorizing thé construction of a railway on a street of the city, as effectually as if the power and right had been conferred directly by the State herself; Dillon, Municipal Coporations, 556, 655; 27 Penn. Stat. 339; 33 Penn. Stat. 99; 6 Wheat. 328; 7 Barb. 509; 23 Peck. 328; 1 Barn. & Ad. 30; 18 Barb. 97; 12 Iowa, 240; 24 Iowa, 455; 10 Bush. 288; 87 Pa. 282; 3 Camp, 226; 5 Hill N. Y. 209. -nln 1876, when the first ordinance was passed granting permission tp the defendant Company to build a track and to establish a st.and for the lake'cars o'n Canal street, between Baronne and Carondelet streets, the City had the right to make the concession. Her. authority for so — 1069 — doing was: the provisions of the Code, the Statute Book and her Charter. The Codal provisions are : That common property is that, to the use. of which all the inhabitants of a city or other place, or even strangers, are entitled in' common, such as streets, public walks, the quays, and that common property, though it belongs to the corporation and be not for the common.use, may be employed for their advantage by the municipal administrators. R. C. C. 4,58. . The statutory provision is, that “ no railroad, plank road, or canal, Shall be constructed through the streets of any incorporated city or town, without the consent of the Municipal Council thereof.” R. S. 689. The Charter, Secs. 12 and 13, provide that the City Council shall have the power to regulate and make improvements to the streets, public squares, and other public property, and to regulate the proper government of carts, drays, carriages, omnibuses, and all other vehicles of every description, freight, locomotive, passenger and street cars, which run in the streets and within the limits of the city. . This power was, perhaps, better formulated in the present charter, (1882, p. 21) which provides that the City shall have power to authorize the use of the streets for horse and steam railroads. The City owned the middle ground, either as public or private property, and in either contingency could have disposed of it, the way she did. Strenuous efforts were made in argument to establish that the consolidation of the New Orleans, Metairie & Lake R. R; Co., (incorporated by law) with the defendant Company, was illegal, and that thereby the latter did not acquire the right said to have been possessed by the. former to run and station steam trains on the spot in question. It is unnecessary, presently, to examine whether the first corporation ever existed and what its prerogatives were. It is likewise needless to ascertain whether the consolidation of the two companies was legal or not. The City does not grant franchises. This can be done by the State alone. But the City can concede the right of way through her streets, public places and other property. It is perfectly true that franchises cannot be transferred. It is worthy of note, also, that the titles of two of the plaintiffs date back to 1849 and to 1853, before any track was laid on the neutral ground in question, while that of the third one, which, was to be produced, was not furnished, and is not included in the transcript. ... ,.The plaintiffs, then, were front property owners when the City permitted the use of the neutral ground the way she did, for street cap purposes, whether moving or stationing. — 1070 — If it be true that the plaintiffs had vested rights under their purchases in and to the strip of land on which the cars are run and stand in front of their residences and stores, they should have been as watchful as if the same had been their exclusive property. They have slept on the same, and at this late hour how can they be heard successfully to complain ? The authorities are unanimous to the effect that, where a party stands by and silently permits the construction of a railroad on his land, it is too late for him, after the road is completed and large sums of money are expended on the faith of his apparent acquiescence, to seek, by injunction or otherwise, to deny to the railroad company the right to use the property. Tile omission of resistance is an implied assent. The moment the work was completed without opposition, the public, the company, and all concerned in it, acquired á vested right to it. Hilliard on Inj., 43; High on Inj., 397, and cases cited; also, Goodin vs. Cin., 18 Ohio Stat., 169; 31 An. 480. • In the instant case, permission was first granted in 1876, and it has been enjoyed for four consecutive years without any judicial complaint on the part of plaintiffs. The privilege or right of way was next revoked, but after a brief interruption, again conceded. In neither instances, however, was the right of using steam as a propeller, conferred. This is a most material omission, fatal to the pretensions of the defendants to run and station their trains moved by that power. This privilege should have been expressly formulated. It is hardly necessary that the defendant Company could not, and did not, acquire the right to use steam, by any concession on the part of the New Orleans, Metairie & Lake R. R. Co. Such right could not be delegated, either specially or by an unauthorized consolidation of companies. II. The plaintiffs complain that thecarsrundailyandcontinuouslyin the night, at short intervals; that this causes noises and motions -which disturb the comfortable enjoyment and affect the value of their property ; that the engines emit odors, noxious vapors, which are exceedingly disagreeable to the senses, and that the use of the street or middle ground by said Company, in that manner, has become an intolerable nuisance which should be abated, and which has occasioned them damages, which they are entitled to recover. Having reached the conclusion that, although the defendant Company was allowed by the City to extend its track to Carondelet street on the middle ground, still the City has not conferred on them the privilege — 1071 — to run tlieir trains, moved by steam, thereon; the legal consequence flowing therefrom is, that the unauthorized use of steam is a nuisance in contemplation of law, though perhaps not so in reality, of which the plaintiffs have a right to complain. The right of way is, in terms, revocable, at the pleasure of the Council. The power of recalling or regulating it is in them. There can be no doubt that it will be exercised whenever they will deem it expedient to do so, in case a suppression be considered conducive to the public good. From all the foregoing it results that, while the strip of land, known as the neutral ground, on Canal street was dedicated for a public use, its destination was not changed by the City; that, if it was altered, or modified to some extent, the change was accomplished with legal authority ; that the plaintiffs, in any contingency, have no standing in Court to complain that the right of way and station was granted and the road laid; that the use of steam, on the space between Basin and Carondelet streets, being unauthorized, is a constructive nuisauce, and that, as the Company has no authority to use steam, an injunction lies in the premises against it. The evidence does not disclose a state of facts in which pecuniary damages can be allowed. It is, therefore, ordered and decreed that the judgment appealed from be reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiffs, so far only as to allow the injunction prayed for, forbidding the defendant Company from using steam as a propeller on their tracks, between Basin and Carondelet streets,'on Canal street in this City, and that, in other respects, the demand of plaintiffs be rejected, the defendants to pay costs in both Courts. Fenner, J., recuses himself, having been of counsel. Manning, J., concurs in the decree.