Obrázky stránek
PDF
ePub

road was constructed in a street under permission granted by the proper city authorities, subject to the rights of the adjacent lot owners, an abutting owner may recover damages accruing to his property on account of the maintenance of such road, although he did not own the property when the road was built and received no assignment of damages on account of it from the owner at that time. The measure of damages in such a case is the diminished rental value. Hoffman v. Flint & P. M. R. Co., 114 Mich. 316 (72 N. W. Rep. 167). Where work is done by a railroad company in a street of a city under authority from the city to occupy the street for its track the city is not liable to adjoining lot owners for injury to their lots for such work, but they must look to the company. Jordan v. City of Benwood, 42 W. Va. 312 (26 S. E. Rep. 266; 57 Am. St. Rep. 859; 36 L. R. A. 519). An abutting owner who seeks to recover damages on account of the occupation of a public way by the tracks of a railroad company, with the assent of the proper municipal authorities, has the burden of showing that the power was improperly exercised in the particular case. Mo. Rev. Stat. 1889, § 1255, subd. 26, § 2543. Brown v. Chicago Great Western Ry. Co., 137 Mo. 529 (38 S. W. Rep. 1099). Md. Code, art. 23, § 169; Acts 1890, ch. 139, construed and applied-occupation of street by railroad-recovery of damages. McColgan v. Baltimore Belt R. Co., 86 Md. 325 (37 Atl. Rep. 716).

Sec. 49. Railroads in streets-Damages recoverable by one not owning the fee. Where one does not own the fee in a highway, he cannot recover any damages for injuries common to the community in general, but is confined to damages for such injuries as are substantially different in kind from those suffered by the community in general. A material interruption of his means of access is a special injury, but increased danger from fire is held not to be. Pittsburg, C. C. & St. L. Ry. Co. v. Noftsger, 148 Ind. 101 (47 N. E. Rep. 332). The court say: "In Railway Co. v. Eberle, 110 Ind. 547, 552 (11 N. E. Rep. 467), this court said: "The "community in general" does not, of course, mean those persons who use the street and highway, and yet reside at such a distance from the railroad as to suffer none of the annoyances or inconveniences

incident to its construction and operation. The interest in the street which is peculiar and personal to the abutting lot owners, and which is distinct and different from that of the general public, is the right to have free access over it to his lot and building, substantially in the manner he would have enjoyed the right in case there had been no interference with the street. The right of access by way of the street is an incident to the ownership of the lot, which cannot be taken away or materially impaired without liability to the owner to the extent of the damages actually incurred. In this respect, and in this only, is the interest of the abutting property owner different in the street in front of and beyond the line of his lot from that of the public. The location and operation of a railroad upon a public highway may occasion incidental embarrassment and inconvenience to an abutting lot owner, but until it cuts off or materially interrupts his means of access to his property, or imposes some additional burden on the soil, his injury and damages, while different in degree, are the same in kind as those of the community at large. For such merely incidental damages as result from the careful construction and prudent operation of a railroad on the land of another, even though it be in a public street, the adjacent proprietor cannot recover. These are damages common to all those whose lands are in such close proximity to a railroad, which happens to be located on the land of another, as to suffer incidental injury therefrom. For such injuries or inconveniences, in the absence of a statute giving him redress therefor, the property owner is not entitled to recover. Railroad Co. v. Heisel, 38 Mich. 62; Railroad Co. v. Andrews, 30 Kan. 590 (2 Pac. Rep. 677); City of Chicago v. Union Bldg. Ass'n, 102 Ill. 379 (40 Am. Rep. 598); Rigney v. City of Chicago, 102 Ill. 64.' The law as declared in Railroad Co. v. Eberle, 110 Ind. 547, 552 (11 N. E. Rep. 467), was approved by this court in Dantzer v. Railway Co., 141 Ind. 604 (39 N. E. Rep. 223; 50 Am. St. Rep. 343; 34 L. R. A. 769); and Decker v. Railway Co., 133 Ind. 493 (33 N. E. Rep. 349)."

tion.

Sec. 50. Railroads in streets established by dedicaWhen a dedication of a street for the purposes of a highway has heen made, with an express reservation in writing,

to the donors, their heirs or assigns, of the right to designate a portion of such street or highway for railroad purposes, persons who afterwards take conveyances of lots according to the map, and agreements in writing, by which such dedication was made, indorsed upon such map, with knowledge of such reservation in the dedication, or where such reservation is contained in the conveyances, are estopped from denying the validity of an ordinance of a city giving consent to the use of a part of such street for railroad purposes, if there remains what is necessary of the street for their protection. Tallon v. Mayor of Hoboken, 59 N. J. L. 383 (36 Atl. Rep. 693). A bill by an abutting owner, to enjoin the construction of a railroad in a street, which it is alleged was established by dedication by his predecessors filing a map and selling lots in reference thereto, is defective, where it fails to show the existence of such map and the other attendant facts necessary to establish the dedication. Thompson v. Ocean City R. Co., N. J. Eq. (37 Atl. Rep. 129).

Sec. 51. Street railroads. The construction of a street railway in a highway as a part of the route different from that authorized by the franchise granting the privilege, may be enjoined by an abutting owner of the fee. Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146 (36 Atl. Rep. 1107). The power given to the city of Hoboken, N. J., by the 11th section of its charter, N. J. Pamph. Laws, 1861, p. 526, to grant permission by ordinance to any person or corporation to lay railroad tracks and run rail cars thereon, in or over any of the streets within said city, is limited to the construction and operation of street railways, and does not authorize the construction of an ordinary railroad in its streets. Tallon v. City of Hoboken, 60 N. J. L. 212 (37 Atl. Rep. 895). A street railway company is not liable for exemplary damages on account of obstructing an abutting owner's access to a street, where the obstruction was removed by the company before the trial of the action brought on account of it. Biloxi City R. Co. v. Maloney, 74 Miss. 738 (21 So. Rep.

Sec. 52. Elevated railroads. Starr & C. Ann. Ill. Stat., Vol. 2, ch. 114, pars. 201-203, requiring the consent of the owners of more than half of the abutting frontage to authorize the granting of permission to construct an elevated railroad in the street does not enlarge the individual rights of the abutters in any way. Doane v. Lake St. El. R. Co., 165 Ill. 510 (46 N. E. Rep. 520; 56 Am. St. Rep. 265; 36 L. R. A. 97). A general power given to cities to provide for and change the location of railroads, will authorize an ordiÌnance removing the limitations imposed by a former ordinance on the width and location of the right of way of an elevated railroad. Tudor v. Chicago & S. S. R. T. R. Co., 164 Ill. 73 (46 N. E. Rep. 446; 36 L. R. A. 379). A release by an abutting owner to an elevated railroad of the easements or rights appurtenant to the premises which had been taken or were affected by the maintenance and operation of the road, effects an abandonment of the abutter's easements of light, air and access, afforded by the street in front of the premises. . Ward v. Metropolitan El. Ry. Co., 152 N. Y. 39 (46 N. E. Rep. 319). An abutting owner cannot enjoin the construction of an elevated railway upon the ground that the consent of the city has not been legally obtained, because of facts alleged which do not appear upon the face of the proceedings. His remedy is by an action at law to recover damages he may suffer on account of such illegal construction, and in such a case he may recover in a single action all his damages present and future. Doane v. Lake St. El. R. Co., 165 Ill. 510 (46 N. E. Rep. 520; 56 Am. St. Rep. 265; 36 L. R. A. 97). Upon the first proposition this case is followed in Stewart v Chicago General St. Ry. Co., 166 Ill. 61 (46 N. E. Rep. 765). Where, in a proceeding to condemn land for an elevated railroad, witnesses are allowed to testify as to its effect on the value of adjacent property, they may state their previous experience in such matters. Metropolitian West Side El. R. Co. v. White, 166 Ill. 375 (46 N. E. Rep. 978). In determin ing the damage to abutting property by the construction of an elevated railroad, it is not admissible to show the damages accruing to other property several blocks distant. Lake Roland El. Ry. Co. v. Frick, 86 Md. 259 (37 Atl. Rep. 650.

Sec. 53. Shade trees. A municipal officer authorized to construct a sidewalk is not liable for the removal of trees, where in making such removal he acts honestly without being actuated by any improper or dishonest motive, in good faith, and because, in his judgment, it is reasonable and necessary to remove them in order to make and complete the improvement authorized. Wilson v. Simmons, 89 Me. 242 (36 Atl. Rep. 380). Under Kan. Gen. Stat. 1889, par. 789, a city of the second class may contract for planting, maintaining, and protecting shade trees on its streets, and for the purpose of paying for the same may make assessments and collect taxes in the same manner as provided for assessing and collecting taxes for sidewalks. Heller v. City of Garden City, 58 Kan. 263 (48 Pac. Rep. 841). Mass. Pub. Stat., ch. 54, § 8-penalty for injuring or destroying shade trees-amended, Laws 1899, p. 327.

Sec. 54. Change of grade-Municipal liability— Measure of damages. A purchaser of an abutting lot, after the municipality has established a paper grade line, but before actual physical grading conforming the street to that line, is not precluded from recovering damages to his lot, but he cannot recover damages to buildings erected after the adoption of such paper grade. Blair v. City of Charleston, 43 W. Va. 62 (26 S. E. Rep. 341; 64 Am. St. Rep. 837; 35 L. R. A. 852). To the same effect is the case of City of Omaha v. Williams, 52 Neb. 40 (71 N. W. Rep. 970). R. I. Pub. Stat., ch. 65, §§ 34-41; Gen. Laws, ch. 72, §§ 28-35, construed and applied-recovery of damages from municipality for change of grade. Almy v. Goggeshall, 19 R. I. 549 (36 Atl. Rep. 1124). Minn. Sp. Laws 1885, ch. 5, construed and applieddamages, by change of grade, to property situate in the city of Minneapolis. Abel v. City of Minneapolis, 68 Minn. 89 (70 N. W. Rep. 851).

The measure of damages for injury to property from the change of a street grade is the diminution of the market value of the property on account of the change. In estimating the damages, all damage and injury arising from the change causing a diminution in value of the property are to be regarded, abating all special benefits to the property enhancing its value

« PředchozíPokračovat »