Sioux City Seed & Nursery Co. v. Detroit & Mackinac Ry. Co.

Brooke, C. J. The facts involved in this case will be found fully set forth in the case of Detroit & Mack [182] inac Railway Co. v. Sioux City Seed & Nursery Co., reported in 168 Mich. 668 (134 N. W. 1103). In that case the defendant in the case at bar was complainant and the plaintiff herein was defendant. We there held that the defendant therein (plaintiff herein) was not entitled to restrain the railroad company from taking possession of and occupying and building upon the vacated streets, but remitted defendant there to its remedy at law. The present action is a suit at law brought by the seed company, as plaintiff, against the railroad company, for damages which it alleges it has suffered by reason of the closing of the streets and alleys, a description of which will be found in our former opinion. It will be remembered that Tenth street runs approximately east and west, and that Saginaw street runs approximately north and south. The railway company, from the time it was built, has been located, at the point in question in the center of Tenth street. Plaintiff’s premises are located upon the northeast corner of Saginaw and Tenth streets. A side track, or spur, lead,s' from the main track directly to and along the Tenth street frontage of plaintiff’s warehouse. Saginaw street north of Tenth street was not closed, but it was closed for a distance of one-half block immediately south of Tenth street, and Tenth street was closed for a distance of about five blocks. The depot, now completed, in part occupies the whole of Saginaw street south of Tenth street. It will therefore be noted that plaintiff’s property, which extends from Saginaw street to Tawas street, abuts on Tenth street, which was closed, and abuts on Saginaw street at a point where it was not closed. As pointed out in our former opinion, access to plaintiff’s property may still be had by way of Saginaw street from the north, or Tawas street from the east. The closing of Saginaw street south of Tenth street undoubt [183] edly renders communication with plaintiff’s property from the south more inconvenient than it was before the closing of Saginaw street south of Tenth street. This situation is identical with the situation set out in the case of Buhl v. Union Depot Co., 98 Mich. 596 (57 N. W. 829, 23 L. R. A. 392). This court there held, in an exhaustive opinion, that: “The injury sustained by a landowner whose land fronts upon a public street, but not upon that portion occupied and closed by a union depot company under Act No. 94, Laws of 1891, and whose means of ingress and egress are not thereby cut off, but only rendered less convenient, is damnum absque injuria, and damages are not recoverable under said act, which provides that, in case of such occupancy and closing, the company shall pay to all parties entitled to the same any and all damages that may accrue to them in consequence thereof.” Headnote. Upon the trial the plaintiff distinctly disclaimed any damages to it arising from the closing of Tenth street, which the record shows had never, since the building of the railway, been used for purposes of general travel in the vicinity of plaintiff’s premises. No testimony was introduced on behalf of plaintiff tending to show such damages. Under the condition of the record as presented to the court below, and in view of the holding in the case of Buhl v. Union Depot Co., supra, we are of opinion that the trial court should have directed a verdict in favor of defendant. A verdict, however, was directed in favor of plaintiff for nominal damages. Inasmuch as defendant does not appeal and the verdict directed was more favorable to plaintiff than it was entitled to, the judgment is affirmed. Me Alva y, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.