Grand Rapids and Indiana Railroad Company v. Heisel. GRAND RAPIDS AND INDIANA R. R. Co. v. HEISEL. (38 Mich. 62.) Damages - railway in public street — abutting owner. An abutting owner, who does not own the soil of the street, cannot recover for any injury to his freehold resulting from the presence of a steam railway in the street, but only for damages resulting from such misconduct in its management as amounts to a nuisance, as leaving cars standing an unreasonable time, unnecessary noises and dangerous speed. TRES RESPASS. The opinion states the case. ment below. The plaintiff had judg Hughes, O'Brien & Simley, for plaintiff in error. Thompson & Pratt, for defendant in error. The presumption that an adjacent proprietor owns to the middle of the street is not rebutted by the fact that his title-deed bounds his property by the line of the street, Moody v. Palmer, 50 Cal. 31; Champlin v. Pendleton, 13 Conn. 23; Purkiss v. Benson, 28 Mich. 538; Peck v. Smith, 1 Conn. 193; Am. Dec. 216; Bissell v. N. Y. Cen. Ry. Co., 23 N. Y. 61; Paul v. Carver, 26 Penn. St. 223; nor by showing a qualified fee in the county, Kimball v. Kenosha, 4 Wis. 321; but in any case he would have a substantial interest in the soil as appurtenant to the land and would have a right of action for an injury tɔ it; Haynes v. Thomas, 7 Ind. 38; Tate v. O. and M. R. R. Co., id. 473; Schulte v. N. P. T. Co., 50 Cal. 592; Lackland v. N. M. Ry., 31 Mo. 180. Railroad tracks in the street are a public nuisance. Springfield v. C. R. Ry., 4 Cush. 71; Com. v. N. and L. Ry., 2 Gray, 56; Com. v. O. C. and F. Ry., 14 id. 93; Com. v. V. and M. Ry., 4 id. 22; Railway Co. v. Smith, 49 Me. 9. As to the rule of damages see Troy v. Cheshire R. R. Co., 23 N. H. 83; Ill. Cen. R. R. Co. v. Grabill, 50 Ill. 241; Railway Co. v. Capps, 67 id. 607; Del. and R. Ry. Co. v. Wright, 1 Zab. 469; Hatfield v. Cen. Ry., 33 N. J. 251; Stone v. Bumpus, 40 Cal. 428; Hopkins v. Railroad, 50 id. 191; Davis v. Railroad, 12 Wis 16; Sherman v. M. L. S. and W. Ry. Co., 40 id. 645. Grand Rapids and Indiana Railroad Company v. Heise.. COOLEY, J. Mrs. Heisel sued the railroad company in case for an injury suffered by her as owner of a lot situated on West Division, formerly Seward street, in the city of Grand Rapids. The injury complained of was one resulting from an occupation of the street in front of plaintiff's premises by the main track of the railroad, and also by a side track upon which cars were often left standing. Plaintiff occupied the lot as a homestead, and special damages were claimed not only for the inconvenience of access to the lot caused by the running and keeping of cars in the street, but also for the discomfort occasioned by the smoke, dust, noise, etc., from the engines and carriages. Mrs. Heisel bought the land in 1868, after the railroad track had been laid in the street, but before the side track had been put in. The description in her conveyance was as follows: "The following described piece or parcel of land lying and being situate in the city of Grand Rapids, Kent county, and State of Michigan, to wit: Commencing at a point where the continuation of the north line of Second street of Scribner and Turner's addition to the city of Grand Rapids would intersect the east line of Seward street; thence running north on the line of said Seward street one hundred feet; thence east parallel to said line of Second street one hundred feet; thence south parallel to the line of Seward street one hundred feet to the north line of said Second street; thence west along the line of Second street one hundred feet to the place of beginning." Upon the trial the plaintiff gave evidence tending to show that she was specially incommoded by the running of the cars in the street, and particularly by cars being left standing on the side track; that the smoke, noise, smells, etc., made the neighborhood unhealthy and unpleasant; that her own health received injury therefrom, and that the market value of her premises was greatly decreased in consequence of the use of the street by the railroad company. The defendants gave evidence of a permission which had been granted to them by the city to lay their tracks in the street, and it is not questioned here that that permission was lawfully given, but a question arises upon it which will be considered further on. The defend. ants also claimed that the plaintiff had no title to the lands embraced within the limits of the street, but the circuit judge held that whether she had or not was immaterial. He also instructed the jury in respect to damages as follows: "The plaintiff claims that by reason of the injury she has lost Grand Rapids and Indiana Railroad Company v. Heisel. certain rental of the lot which had a house on it as claimed; and second, it is claimed that the plaintiff has been injured in health, and has been annoyed by the running of trains, and standing of eattle cars on the side-track, for which trouble and anncyance she claims to recover some damages; and third, the decreased value of the premises by reason of the road and side-track are claimed as damages. In my judgment the plaintiff may recover upon all three of these claims for damages, provided that you find as a fact that such damages have been actually sustained by the plaintiff." One question which it becomes necessary to notice in the case, relates to the permission which was given by the city authorities for the occupation of the street with railroad tracks. Under the general railroad law now in force a railroad company with such permission is not allowed to construct its road in a public street until "damages and compensation be made" to the adjoining owners. General Railroad Law, 1 Sess. L. 1873, p. 505; act 198, art. 2, § 9, sub. 5. The track of the company was laid in the street in 1868, before the plaintiff became owner of her lot. No formal permission for the occupation of the street was given by the city authorities til 1873, which was after the plaintiff had purchased and gone into occupation. No compensation has been made by defendant to the adjoining owners, but as no statute made such compensation a condition precedent to the occupancy of the street, at the time it began, and as the city then imposed no conditions, I cannot see how that fact can make the occupation which was tacitly permitted, illegal. Nevertheless the right of the plaintiff to recover compen sation in some form, if she was ever entitled to any, is not affected by what has taken place; if she has rights in the street which are property rights, or if as respects the enjoyment of her lot she suffers any deprivation of right through the occupation of the street by the railroad company, she is, I think, entitled to recover compensation by suit, to the same extent that she would have been entitled to demand it had she been owner before the track was laid and demanded it in advance. Her right, however, must be tested by common-law rules; the statute does not undertake to prescribe for what the adjoining owners shall be compensated, nor, as we under and it, to enlarge their common-law rights. What rights the adjoining owner has in the public streets is then e question; and I cannot resist the conclusion that the circuit judge was in error when he instructed the jury that it is immaterial Grand Rapids and Indiana Railroad Company v. Heisel. in this controversy whether the plaintiff's ownership extended to the center of the street or was restricted to the limits actually included in the boundaries given in her deed; in other words, that it is immaterial whether the railroad company has actually appropriated her land, or has only interfered with her enjoyment of the public easement. It is, to my mind at least, doubtful whether it is competent for the public authorities to bind the interests of individuals by any consent they may give to the occupation for railroad purposes of a public highway, when the land over which the highway is laid is owned by private parties. If the railroad were only a city railway constituting a mere local convenience, and calculated to relieve the pressure of traffic and travel upon the street, the question, of course, would be different. There are cases which hold it to be competent under proper legislative authority, to permit a street railway track to be laid, regardless of the consent or of the wishes of abutting proprietors who may own the soil of the street. A street railway for local purposes, so far from constituting a new burden, is supposed to be permitted because it constitutes a relief to the street; it is in furtherance of the purpose for which the street is established, and relieves the pressure of local business and local travel instead of constituting an embarrassment. It is for this reason that the owners of lands over which a city strect is laid are denied compensation if a street railway is subsequently authorized within it; if they were compensated for the taking of their land originally, they are supposed to be compensated for all possible losses they may suffer from its being put to proper uses as an avenue of local trade and passage, and if without compensation they dedicated it to the public, they are supposed to have contemplated and assented to all such uses. They have, therefore, no ground for complaint when the new convenience is brought into use; and I apprehend one would not be permitted to show that in his particular case the street railway was an injury rather than a benefit. It is enough that the use of the street for a city railway is a proper use, and therefore a lawful use; being such, it can give rights of action to no one. Such appear to be the conclusions of the courts. Brooklyn City, etc., R. R. Co. v. Coney Island, etc., R. R. Co., 35 Barb. 364; Brooklyn Central, etc., R. R. Co. v. Brooklyn City, etc., R. R. Co., 33 id. 420; People v. Kerr, 27 N. Y. 188; New Albany and Salem R. R. Co. v. O'Daily, 12 Ind. 551; Brown v. Grand Rapids and Indiana Railroad Company v. Heisel. Duplessis, 14 La. Ann. 842; Elliott v. Fair Haven, etc., R. R. Co. 32 Conn. 579; Hobart v. Milwaukee City R. R. Co., 27 Wis. 194.* But we cannot say the same in the case of the ordinary railroad. It is not usual for such a road to be laid in one of the public highways, and the cases in which it is permitted are exceptional. For that reason, therefore, if for no other, the owner whose land is taken for a highway, whether in town or country, cannot be under stood to have assented to its being appropriated, either wholly or in part to railway purposes at the discretion of the public authorities, and to have been compensated for such appropriation. Neither can the use of the highway for the ordinary railway be in furtherance of the purpose for which the highway is established, and a relief to the local business and travel upon it; the two uses on the other hand, come seriously in conflict; the railroad constitutes a perpetual embarrassment to the ordinary use, which is greater or less in proportion to the business that is done upon it and the frequency of trains. When, therefore, the country highway or the city street is taken for the purposes of a railroad company engaged in the business of transporting persons and property between distant points, the owner of the soil in the highway is entitled to compensation, because a new burden has been imposed upon his estate, which affects him differently from the original easement, and may be specially injurious. "The right of way, the road-bed and the carriages propelled thereon are owned by private individuals, and not by the public. Fares are charged for travel thereon for the exclusive benefit of the parties owning the road. They are constructed and equipped in the interest of private speculation, but at the same time they are intended to subserve the public good. The travel on them bears no analogy to our notions of travel on an ordinary street or highway, where everyone travels at pleasure in his own conveyance, without paying tolls or fares. The uses are totally different and even inconsistent." Indianapolis, etc., R. R. Co. v. Hartley, 67 Ill. 439, 444; S. C., 16 Am. Rep. 624, per SCOTT, J., following and repeating to some extent SHAW, Ch. J., in Springfield v. Conn. R. R. R. Co., 4 Cush. 63. To the same effect see Cox v. Louisville, etc., R. R. Co., 48 Ind. 178, 189, per DOWNEY, J. The following cases sustain and illustrate the same view: Presbyterian Society v. Auburn, etc., R. R. Co., 3 Hill, 567; Williams v. New York Central R. R. Co., 16 N. Y. 97; Wager To same effect, Attorney-General v. Metropolitan R. Co (125 Masc. 515), 25 Am. Rep. 264, Bee, also, note, p. 269. |