same streets, to be operated by electricity; that these are the main business streets of the city; that the plaintiff had constructed on them a single track, with turnouts; that, if it were to lay down another, the two would occupy about 20 feet in width; and that, if two additional tracks, as threatened by the defendants, should be laid down, the streets would be so obstructed by the four tracks as to greatly interfere with other modes of travel; and that, if poles and wires, as threatened, should be placed in front of the property owned by plaintiff, it would be seriously damaged thereby. The complaint prays that the ordinance granting the permission to defendants to lay down their tracks may be declared null and void so far as it purports to grant to defendants any right to construct their road on the streets, and that they may be enjoined from filing the bond exacted as one of the conditions of the permit. A prayer for general relief is also added. To the complaint the defendants interposed a demurrer, which the court below sustained, and also refused an injunction. From the decision of the court the plaintiff has appealed to this court, and assigns it as error. The points urged by plaintiff upon the argument of this appeal call for a consideration of the authority of the city Street railways generally. council to give permission to individuals and corporations to construct railways upon the public streets, and to control their location and operation thereon. The city council of Ogden city, by virtue of its general authority over such streets, was authorized to permit street car companies to construct and operate their roads upon them; but without special authority the council could not permit ordinary railroads, with trains propelled by steam power, to do so. The permission is given to facilitate public public travel, and for the benefit and convenience of the public. The permission to such companies cannot confer upon them an exclusive right. The right so given exists in common with the right to travel on the streets in wagons and by other vehicles, and on horseback and on foot, in all legitimate ways. Such persons or companies, in the observance of all reasonable care and caution, have the right to pass their cars over their tracks as often as the public convenience requires and the demand will justify. The cars have the right of way, and the travel by other means and in other ways must turn out, because it can and the cars cannot. The city authorities have the right to require the tracks to be so constructed and kept in repair that travel by other modes can conveniently and safely use them. It is the right and duty of the city to exercise such reasonable control over the construction, repair, operation, and business of street railways as the safety, con. venience, and good of the public demands. The private rights of the owners and occupants of property abutting on the street must also be protected, for the law is that such abutters have an easement in the street appurtenant to their property of which they cannot be deprived without their consent, or without just compensation in pursuance of the law of eminent domain; and the council has the power, and it is its duty, to say that no more than a reasonable portion of the street shall be occupied by street railways, and it has no right to consent that more shall be so used. In his work on Municipal Corporations, Judge Dillon says: "The author regards the appropriation under legislative authority of a reasonable portion of the street for a horse railway, constructed on the gradual surface of the street, and used under municipal regulation in the ordinary mode, to be such a use as falls within the purposes for which the streets are dedicated or acquired under the power of eminent domain. When thus authorized, and so regulated by the public authorities as not to destroy the ordinary and usual street uses, this is a public use within the fair scope of the intention of the proprietor when he dedicated the street or was paid for property to be used as a street. Such proprietor must be taken to contemplate all improved and more convenient modes of use which are reasonably consistent with the use of the street by ordinary vehicles and in the usual modes. * ** The limitations being that such use must not deprive the abutter of his property rights and easements in the streets, or destroy the ordinary uses of the streets as a public and common highway open to all." If separate tracks for two or more railroad companies on a street with cars operated on them would increase the hazards, or seriously obstruct travel thereon in other ways, or interfere with the right of abutters, such individuals or companies should be limited to the common use of the same track or tracks. This could be done by suitable conditions, reservations, or limitations at the time of the grant of the right of way, or, in the absence of them, in pursuance of the law of eminent domain. Section 3841 of the Compiled Laws of Utah is as follows: "The right of eminent domain may be exercised in behalf of the following public uses: * * * (3) Wharves, * steam and horse railroads. Sec. 3843. The private property which may be taken under this chapter includes: (1) All real property belonging to any person. (2) Lands belonging to this territory, or to any county, incorporated city, village, or town, not appropriated to some public use. (3) Property appropriated to public use; but such property shall not be taken unless for a more neces * * Right of eminent domain. * * * ** sary public use than that to which it has already been appropriated. * (5) All rights of way for any and all purposes mentioned in section 3841, and any and all structures and improvements thereon, and the lands held or used in connection therewith, shall be subject to be connected with, crossed, or intersected by any other right of way or improvement or structure thereon. They shall also be subject to a limited use in common with the owner thereof when necessary; but such uses of crossings, intersections, and connections shall be made in manner most compatible with the greatest public benefit and least private injury." Electrical railways were not mentioned in the act, but horse and steam. railways were. At that time horse and steam power was used, because thought to be the best. Electricity was not then known as a car motor; but ingenuity and invention have since subjected it to that use, and it is being substituted largely for the others: and we have no hesitation in holding that under the statute the right of eminent domain may be exercised, in proper cases, in behalf of electrical roads as well as for steam and horse railways. injunction. While the owner of a railway may have an interest in its property, that interest is not more inviolable and sacred than other interests in property. The private interest is Right to an one thing, and the public use is another. The property is taken for the public use, not to transfer the interest that one person has in the property to another person. Such transfer incidentally and necessarily follows in order that the public benefit may be enjoyed. When the tracks of one company on a street are sufficient for the business of two or more companies they should all be required to use them, and the hazards and inconveniences and obstructions to travel by other modes should be limited to the tracks of the one company. If the interest of each company in the railroad property used in common is sufficient to enable them to accommodate the public travel, that is sufficient. It appears from the allegations of the complaint that the plaintiff had laid down but one track on the streets named, and that the defendants had not commenced the construction of theirs. The court below was asked to declare the ordinance giving the defendants the right of way on them void. If it had been so decreed the defendants could not have laid down one track, and it does not appear that one additional track would have materially obstructed travel by other modes, or that it would have interfered with plaintiff's private easement on the streets appurtenant to its abutting property. The effect of the decree asked by the plaintiff would have been to deny the defendants any permission on the street, even under the law of eminent domain; for any rights obtained under that law would not have authorized them to construct their road on the street without the permission of the city council. The allegations of fact are not sufficient to warrant an injunction on the ground that the construction of the defendant's railway would damage the abutting property by materially interfering with rights appurtenant thereto. Except so far as we have considered this case it is analogous to the case of Henderson v. Ogden City R. Co., ante, p. 95; (decided at the present term.) The judgment of the court below is affirmed. ANDERSON and BLACKBURN, JJ., concur. Electrical Street Railways. See ante, Halsey v. Rapid Transit Street R. Co., p. 76, and note p. 89. TEXAS & NEW ORLEANS R. Co. (Texas Supreme Court, February 27, 1891.) Railroad in Street-Action for Nuisance-Damages-Depreciation of the Property. In an action against a railroad company to recover damages for the operation, in a wrongful manner, of its railroad along the street in front of plaintiff's property, there can be no recovery for depreciation of the property caused thereby, the proper measure being such special damages as may accrue up to the time of the trial. APPEAL from District Court, Harris County. W. N. Shaw, for appellee. Case stated. GAINES, J.-Appellants brought this suit, as husband and wife, against the appellee, to recover damages, alleging that the husband was the owner of a certain lot in the city of Houston, along the street in front of which the defendant corporation was operating its line of railroad; that the lot was at the time of bringing the suit, and for a long time previous thereto had been their homestead; and that by reason of the raising of the grade of the road in the front of their property, and the unlawful manner of operat ing the road and the trains, they had been damaged by a de. preciation in its value. There were five separate and specific grounds of recovery set up in the petition, to all of which a demurrer was sustained except the first. Upon is. sues joined upon that ground the parties went to trial, and the defendant had a verdict and judgment in its favor. The rul ings of the court in sustaining the demurrers to the second. third, and fifth grounds of action alleged in the petition are severally assigned as error. The second cause of action alleged is that, by the ordinance of the city of Houston, the defendant company is prohibited from running its trains within the city limits at a greater rate of speed than 6 miles per hour, but that the defendant, since the month of September, 1888, had run its trains along the street in front of plaintiff's property at a rate of speed from 15 to 20 miles per hour; that thereby it was rendered unsafe for the plaintiffs and the other members of their family to cross the track in going to and from their home; and that by reason thereof their property had been rendered inaccessible, and had been depreciated in value in the sum of $250. The third cause of action alleged was that the city had made it the duty of the defendant to keep flagmen at certain crossings adjacent to plaintiffs' property; that this duty it had failed to perform; and that, by reason of its failure, cars, trains, and locomotives had been permitted to stand on said crossing an unrea sonable time, thereby depreciating the value of plaintiffs' property in the sum of $250. The fifth ground of recovery alleged is that the defendant had caused trains, loaded with cattle, horses, and manure, to stop in front of plaintiffs' homestead "more than five minutes at a time, and often more than a day at a time," and that from the cars so loaded a stench emitted that pervaded the home of plaintiffs, creating great discomfort and sickness to the family, and that as a result their property had been damaged $500. When a nuisance is created by the construction of works in their nature permanent, and which, as sometimes occurs in case of works for a public use, are not subject to be abated, the rule is that all damages resulting therefrom to property may be recovered in one action, and the proper measure of damages is the depreciation in the value of the property. Rosenthal v. Taylor, B. & H. R. Co. (Tex.), 15 S. W. Rep. 268, (decided at the present term:) Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 44 Am. & Eng. R. Cas. 51. That rule also applies when the injury resulting from the nuisance is of a permanent character. But when the nuisances complained of are of a temporary character, such as may be voluntarily removed or avoided by the wrongdoer, or such as the injured party may cause to be abated, only such damages as have accrued up to the institution of the suit or (under our system) to the trial of the action, can be recovered. For such damages depreciation in the value of the property affected by the injury is not a measure, and in such a suit the amount of such depreciation cannot be recovered. In each of the so called "counts" of the Damages for nuisanceDepreciation of property not a measure. |