Stephens v. New York, etc., Ry. Co freight and passenger depots were erected within a few feet of the former ones. Many facts are found by the referee, which show the great annoyance caused to the plaintiff by the stoppage of trains in close proximity to his premises, and in the obstruction of his sidewalk by discharging or taking on baggage and express matter. They show that the enjoyment and use of the plaintiff's various properties have been interfered with in various ways by the changed mode of operation of the trains upon the street; that, in consequence thereof, the street opposite the plaintiff's premises has been so seriously affected as not only to have become impracticable for traffic, but some parts of his property have been rendered inaccessible, and that he has been made to suffer great inconvenience and loss. The referee found that he had suffered damage to his premises in the fee and in the rental value thereof; but he concluded that the effect of the resolution of the village trustees was to make it lawful for the railroad company to construct and to operate its railroad upon Second street, "without any restriction as to the particular part of the street it should so occupy," and that thereby it had gained "not only the express legal right, but also "the implied legal right," to lay and to operate tracks in Second street, to the extent that it might be found necessary in the management of the railroad, and that it could change its tracks and could lay switch tracks and sidings. without the consent of the village or of the abutting owners. He held that the instrument signed by the plaintiff was a license, and that its effect was to abandon what easements the plaintiff had in the street, and to preclude him from recovering any damages consequent upon the construction and operation of the railroad. Henry D. Donnelly, Paul Armitage, and William C. Stephens, for appellant. Udelle Bartlett and P. W. Cullinan, for respondent. GRAY, J. (after stating the facts). Whether we hold the instrument in question, to which the plaintiff affixed his seal and signature, to be a license or an agreement for an easement, is not very material to the decision, in my opinion, for the reason that in either holding it was quite inadequate to confer a right to make use of the street for railroad operations to an unlimited extent. If it should be construed to be a license, which creates no title in the licensee, and which, in law, is revocable by the licensor, the fact of performance by the licensee, under its authority, in the expenditure of large sums of money in constructing its railroad plant, would move a court of equity to protect the latter's rights against revocation. Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479; Cronkhite v. Cronkhite, 94 N. Y. 323; Greenwood Lake & Pt. J. R. R. Co. v. N. Y. & G. L. R. R. Co., 134 N. Y. 435, 31 N. E. 874. But it is quite obvious that such protection would be extended only to acts the performance of which had been Stephens v. New York, etc., Ry. Co clearly warranted by the licensor under the terms of his consent. If the instrument is construed as an agreement for an easement in land, then its operation would be limited to that which was actually the subject of the grant, and, if in general or indefinite terms, the situation and the contemporaneous acts of the parties would be referred to for the purpose of discovering their intention and of ascertaining if the instrument had been given a practical construction. Onthank v. L. S. & M. S. R. R. Co., 71 N. Y. 194, 27 Am. Rep. 35. In my opinion, this instrument was an agreement to give a release of the plaintiff's interest in the soil of the street, and, as such, equity would enforce it for the protection of the rights of the railroad company. Its consideration was that the company should locate the road in the street, and it was under seal. The terms of the obligation as to each party were plainly expressed, and the only indefiniteness in the instrument would be in the extent of the company's right to make use of the street for railway purposes. It was an agreement to release to the company the plaintiff's rights, and to permit it to construct and operate a railway upon the street in front of his premises. Its intent was that the right to use his land should pass to the company, and, while more formal words of grant would have been appropriate, nevertheless equity will construe it as effecting it. What dispute exists as to the limitation upon the easement granted with respect to the number of tracks which might be laid, or as to their location, is to be resolved by getting at the understanding of the parties. That is best done by considering the surrounding circumstances at the time when the instrument relied upon was obtained. Notwithstanding that the instrument bore date in May, 1868, effect is to be given to it as of the time when the plaintiff actually executed it, for only then did he agree to convey any right to burden his land. That was in the fall of 1869, and after the company had constructed a single track substantially in the center of the street. He then knew, or was chargeable with the knowledge, that the village authorities had formally permitted the railroad company to "make, grade, and lay the track of their railroad and operate the same" in Second street. The maps filed by the company delineated a single red line in the center of the street. But one track had been constructed, which was in the center of the street, and which left it still practicable for street uses on either side. By the terms of the instrument, the plaintiff's agreement was qualified by the added words of "for right of way in the street only," and the company was to make "no unnecessary obstruction of the street," and was "to make the access to plaintiff's lots as easy and convenient as practicable." In the light of these facts, it is not easy to see how the company was in a position to claim that it had gained from the plaintiff the right to utilize the street for as many tracks or for such sidings or switches as it might deem necessary in the Stephens v. New York, etc., Ry. Co accomplishment of its corporate purposes. Nor was it in any position to define the easement by the powers conferred by the general railroad act of 1850 (Laws 1850, p. 211, c. 140), and, under the consent, to take all such land as it might require for corporate purposes. While a railroad corporation is given the general power "to lay out its road, not exceeding six rods in width and to construct the same," it was required, before any work of construction, to make a map and a profile of the route adopted by it. The only attempt at compliance, in the present case, with the statutory condition as to a map, was to indicate upon the maps which were filed the proposed location of the railroad through Second street by a red line, appearing to be substantially in the center of the street. Such a map, in my opinion, was a defective compliance with the statute. Delineating the railway by a single red line furnished no indication whether the line was the center or an exterior line of the proposed route, nor of its width. The amount of land to be taken did not appear even inferentially. The object of the statute was to provide, by a public record, such information by maps as would disclose to all persons interested in the construction of the road its true location and boundaries. Matter of N. Y. & Boston R. R. Co., 62 Barb. 85; Matter of Boston, etc., R. R. Co., 10 Abb. N. C. 104; N. Y. & Albany R. R. Co. v. N. Y., West Shore, etc., R. R. Co., II Abb. N. C. 386. The same principle would seem to have obtained in Massachusetts. Housatonic Railroad Company v. Lee & Hudson Railroad Co., 118 Mass. 391. It is a necessary, if not a logical, inference that the map, which is to be filed before any construction, shall show something more definite and descriptive than a single red line. If nothing more definite appeared upon the map to show the railroad be constructed, the plaintiff might reasonably infer that but one track was contemplated; which inference he might consider as confirmed by the actual construction at the time that his consent was sought. In consideration of the advantages which might accrue to him from the operation of such a railroad through his street, he might be willing to agree to such a use of his land, with provisos against unnecessary obstruction, and with the burden of but one track in the middle of the street. The representation upon the map, the language of the village consent, and the appearance of the constructed track, when considered with the wording of the plaintiff's agreement, negative the idea that he was granting the unlimited privilege to change or to add to the then existing track. I reach the conclusion that, the location or route of the proposed railway being indefinitely described upon the map and by the plaintiff's agreement, the principle of construction which obtains in the cases of grants of easements made in general terms should govern here, and, applying it to the established facts, the court should hold that the track, as Detroit, etc., Ry. v. Osborn located in the center of Second street, was unchangeable, and that the railway could not be added to upon the plaintiff's land without his further permission, or the acquisition of the right through statutory condemnation proceedings. Washburn on Easements, 225, 240; Onthank v. Lake Shore & M. S. R. R. Co., supra; Jennison v. Walker, II Gray, 423. When the railroad company undertook to change and to add to its tracks in the ways described, it became a trespasser as to the plaintiff. It rendered itself liable to be restrained in its operations, and to a recovery of damages for any injuries sustained. So far as the ordinary and necessary operation of its railroad upon the one track through the street would cause annoyance, or constitute a nuisance, affecting the enjoyment and use of his property, the plaintiff could not complain. No recovery of consequential damages could be had which were occasioned by the injuries resulting therefrom. They would be the incidents of the right granted, as to which the defendant would be released. But, so far as it was a trespasser upon plaintiff's land, the defendant could be compelled to acquire further easements therein, if needed for its corporate purposes, by purchase or through condemnation proceedings, under the penalty of being restrained in its operations if it failed to do so; and, so far as damages had been sustained through defendant's wrongful acts, to the extent that they may be separately established as resulting therefrom, they can be recovered by the plaintiff. That any appreciable damage resulted from the slight change in the location of the passenger and freight depots is not apparent upon the proofs. They were necessary incidents to the operation of the railroad as authorized. For these reasons, I advise a reversal of the judgment, and that a new trial should be ordered, with costs to abide the event. PARKER, C. J., and MARTIN, CULLEN, and WERNER, JJ., concur. BARTLETT, J., concurs in result. J., absent. Judgment reversed, etc. HAIGHT, DETROIT, FORT WAYNE, & BELLE ISLE RAILWAY, Plff. in Err., v. CHASE S. OSBORN, Commissioner of Railroads. (Argued January 15, 1903. Decided April 6, 1903.) [23 Sup. Ct. Rep. 540.] Error to State Court-Federal Question. A decision of a state court refusing a petition for a writ of mandamus, in which relator claimed and set up a right under the Constitution of the United States, is tantamount to the denial of that right, and is therefore reviewable in the Supreme Court of the United States. Street Railways-Equal Protection of Laws-Validity of Order Requir ing Safety Appliances at Grade Crossings-Constitutional Law. Neither due process of law nor the equal protection of the laws is Detroit, etc., Ry. v. Osborn denied a street railway company by an order of the commissioner of railroads made and issued under Mich. Pub. Acts 1893, act No. 171, § 5, requiring such street railway to pay one half of the expense of constructing and maintaining safety appliances at a grade crossing of a steam railroad which was not built until after the street railway had been constructed. Constitutional Law. An objection that a state statute violates the Federal Constitution because it does not provide for notice to those who may be affected by it is not available to a party who was in fact given notice, and who at the hearing objected to the action proposed to be taken under such statute. In Error to the Supreme Court of the State of Michigan to review a judgment which denied a petition for a writ of mandamus to vacate an order of a railroad commissioner requiring a street railway company to pay a portion of the expense of constructing and operating safety appliances at a grade crossing of a steam railroad. Affirmed. See same case below, 127 Mich. 219, 86 N. W. 842. This case involves the legality of an order of the commissioner of railroads of the state of Michigan, requiring the plaintiff in error and the Union Terminal Association of Detroit, at their own cost and expense, to maintain and operate safety gates and derailing and signaling appliances at Clark avenue, in said city. The order is inserted in the margin." The order was made and issued under act 171 of the Public Acts of the State of 1893, § 5 of which provides as follows: "The commissioner of railroads shall, as soon as possible after the passage of this act, examine the crossings of the tracks of railroads and street railroads then existing, and order such changes made in the manner of such crossings, or such safeguards for protection against accidents *State Michigan, Office of the Commissiof Michi Railroads.} In Re Application of The Common Council of the City of Detroit for Additional Protection at the Clark Avenue Crossing of the Tracks of the Union Terminal Association, in the City of Detroit, County of Wayne, Michigan. Application having been received by the commissioner of railroads from the common council of the city of Detroit, Wayne county, Michigan, for additional protection at the Clark avenue crossing of the tracks of the Union Terminal Association in said city of Detroit, Wayne county, Michigan; And after a personal inspection of the premises aforesaid, and after hearing representations of the city officials of the city of Detroit, as well as the arguments of the representatives of the said railroad company above named in relation thereto, and having decided after due deliberation that the public interests required said additional protection at the said crossing; Now, therefore, by authority vested in me by law, it is hereby ordered : That within sixty days from date hereof, you, the said Union Terminal Association Railway Company, cause to be constructed and there. |