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There are some cases holding to the contrary but the better reasons and the great weight of authority, as above stated, are in favor of the right of the abutting owner to recover compensation. This holding is based with other reasons, upon the conditions found existing in connection with the construction and operation of steam railways. The nature of their roadbed and the manner of its construction, their equipment and motive power, the character of the traffic carried and the practically exclusive use of the ground occupied by them, are facts which have been considered by the courts and have lead to the adoption of the rule given

Pharr, 45 La. Ann. 426, 19 L. R. A. 647.

Hoffman v. Flint & P. M. R. Co., 114 Mich. 316, 72 N. W. 167. The right to recover compensation on the part of the abutting owner is in one having title to the property. Carli v. Stillwater St. R. & T. Co., 28 Minn. 373, 10 N. W. 205. A street railroad used solely as a freight transfer track between two steam railroads running into a city is an additional servitude for which abutting owners can recover compensation.

Kaje v. Chicago, St. P., M. & O. R. Co., 57 Minn. 422, 59 N. W. 493; Sherlock v. Kansas City Belt R. Co., 142 Mo. 172; Butte, A. & P. R. Co. v. Montana Union R. Co., 16 Mont. 504, 41 Pac. 232, 31 L. R. A. 298; Williams v. New York Cent. R. Co., 16 N. Y. 97; Craig v. Rochester City & B. R. Co., 39 N. Y. 404; White v. Northwestern North Carolina R. Co., 113 N. C. 610, 18 S. E. 330, 22 L. R. A. 627; Willamette Iron Works Co. v. Oregon R. & Nav. Co., 26 Or. 224, 37 Pac. 1016, 29 L. R. A. 88; Blesch v. Chicago & N. W. R. Co., 43 Wis. 183. The proposition is too well established to warrant the citation of other cases. See Lewis, Em. Dom. (2d Ed.) § 111; Elliott, R. R. § 1087; Dillon, Mun. Corp. (4th

Ed.) $ 725. The laying of additional tracks it has been held in some cases entitle the abutting property owner to further compensation. See the following cases: Southern Pac. R. Co. v. Reed, 41 Cal. 256; Bond v. Pennsylvania Co., 171 Ill. 508, 49 N. E. 545; Davenport & R. I. Bridge R. & Terminal R. Co. v. Johnson, 188 Ill. 472, 59 N. E. 497; Rock Island & P. R. Co. v. Johnson, 204 Ill. 488, 68 N. E. 549; Stephens v. New York, O. & W. R. Co., 175 N. Y. 72, 67 N. E. 119.

727 Montgomery v. Santa Ana W. R. Co., 104 Cal. 186, 25 L. R. A. 654; Moses v. Pittsburgh, Ft. W. & C. R. Co., 21 Ill. 516; City of Alney v. Wharf, 115 Ill. 519; Fulton v. Short Route R. Transfer Co., 85 Ky. 640; Hepting v. New Orleans Pac. R. Co., 36 La. Ann. 898; Porter v. North Missouri R. Co., 33 Mo. 128; Tate v. M., K. & T. R. Co., 64 Mo. 149; De Geofroy v. Merchants' Bridge Terminal R. Co., 179 Mo. 698, 79 S. W. 386; Morris & E. R. Co. v. City of Newark, 10 N. J. Eq. (2 Stockt.) 352; Drake v. Hudson River R. Co., 7 Barb. (N. Y.) 508; Yates v. Town of West Grafton, 34 W. Va. 783, 12 S. E. 1075.

Some early cases in Iowa and Illinois hold the doctrine of no right to compensation but these have been

above.728 Since the legislature directly or indirectly can authorize the use of a highway by either a steam or a street railroad, the

overruled by the latter ones: See Indianapolis, B. & W. R. Co. v. Hartley, 67 Ill. 439; Kucheman v. C., C. & D. R. Co., 46 Iowa, 366. See, also, the cases of Hoffman v. Flint & P. M. R. Co., 114 Mich. 316, 72 N. W. 167; Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451.

728 See authorities cited in two preceding notes. Mordhurst v. Ft. Wayne & S. W. Traction Co., 163 Ind. 268, 71 N. E. 642. On page 278 of the report it is said by the court in distinguishing between the use of a street by a street railroad and an ordinary commercial road: "This distinction does not rest upon a difference in name-one being denominated a street railroad or a passenger railroad, and the other a commercial or freight railroad-nor upon the motive power employed, nor upon the kind of rail used, nor upon the length of the railroad. It results from the nature of the business done by each of the two kinds of railroads, and the physical agencies and manner by which and in which that business is carried on. Those of the one are consistent with the use of the street by the lot owner and the general public, and, if not directly beneficial to the abutting real estate, are not detrimental to it. They relieve the streets from some of the burdens of travel upon it, they facilitate travel between different parts of the city, and they enhance the value of abutting property by increasing the convenience of access to it. The business of the other class of railroads, and the means by which it is necessarily carried on, require the serv

ice of entirely dissimilar agencies and methods. Great trains of cars moving along the streets, or standing upon them, are real and serious obstructions to all other uses of the highway. Such trains make a loud noise by day and by night, and disturb the quiet of neighborhoods. Access to abutting property is rendered difficult and dangerous, and the jarring and shaking of buildings is annoying to the occupants, and often injurious to the structures themselves. If the cars are propelled by steam, then there is the additional inconvenience of smoke, cinders, sparks, the blowing off of steam, the ringing of the engine bell, and the whistling of the locomotive. There are good and substantial reasons why compensation should be paid to the owners of abutting lots when a street in a city is used for such a purpose and in such a manner."

Rische v. Texas Transp. Co., 27 Tex. Civ. App. 33, 66 S. W. 324. "It was first held that street cars drawn by horses, and used for the transportation of passengers from one part of a city to another, did not constitute an additional servitude on the streets. They were distinguished from steam railways in the rails and construction of the track, the speed at which they run, the noise and vibration produced, the smoke and steam emitted, the danger of frightening horses, the danger to life, and the size and weight of cars and locomotives. When the steam motor and electric cars were invented, all the reasons given why horse railways were not

right of the abutter to compensation, if any, is against the railroad company and not against the public corporation.729

§ 842. Right to compensation as dependent upon abutter's interest in a highway.

The right of the abutting owner to compensation for an occupation of the street is also made dependent in some instances upon the extent of his interest in it. The fee of the highway may be vested in the abutting owner, the public having only an easement. for the purpose of travel or other legitimate use.730 The fee, again, may rest in the public without a reversionary interest in the abutting owner. This latter condition does not, as seen, give to the public an indiscriminate right of use to the property. A highway, even where the fee is vested in the public, can be acquired and maintained only because of its public character and use for legitimate purposes.731

Where the fee belongs to the abutting owner he is entitled, by the weight of authority, to the use of those portions of the highway not occupied or intended for the traveled way and its repair for such personal and private use as will not be inconsistent with, destroy or impair the use of the land as a highway. The question has been fully considered in previous sections.732 In addition, he is also entitled to his rights in common with the public and to his easements of light, air and access. The existence of a commercial railroad with its permanent way and exclusive possession to all practical intents and purposes interferes with the rights of the abutting owner in all these respects and he is clearly entitled to compensation.733

an additional servitude to streets were ignored except that they must be carriers of passengers, and not a freight, from one point to another in a city."

729 Bancroft v. City of San Diego, 120 Cal. 342, 52 Pac. 712; Burkam v. Ohio & M. R. Co., 122 Ind. 344, 23 N. E. 799; Duke v. Baltimore & C. V. R. Extension Co., 129 Pa. 422, 18 Atl. 566.

730 Philadelphia & T. R. Co. v. Philadelphia & B. Pass. R. Co., 6

Pa. Dist. R. 487. The diversion of travel from one side of the street to the other is not regarded as an additional servitude even though occasioned by the construction of a railroad upon one side, the abutting owners having the fee only to the middle of the street.

731 See §§ 422 et seq., and 797 et seq., ante.

732 See §§ 817 et seq.

733 Alabama G. S. R. Co. v. Collier, 112 Ala. 681; Reichert v. St.

§ 843. Abutter's rights when fee is in the public.

Where the fee of the highway is vested in the public, the exist ence of a commercial railroad in a highway still interferes with the abutter's rights as a member of the community and also with his easements of light and air and access and for an impairment or loss of these or any of them, he is as clearly entitled to compensation as if the fee were vested in him." 734 These rights are not at all dependent upon the character of the title resting in the

Louis & S. F. R. Co., 51 Ark. 491, 5 L. R. A. 183; Weyl v. Sonoma Valley R. Co., 69 Cal. 202; Imlay v. Union Branch R. Co., 26 Conn. 249; Bond v. Pennsylvania Co., 171 Ill. 508; Cox v. Louisville, N. A. & C. R. Co., 48 Ind. 178; Terre Haute & L. R. Co. v. Bissell, 108 Ind. 113; Strickler v. Midland R. Co., 125 Ind. 412; Phipps v. W. Md. R. Co., 66 Md. 319; Hartz v. St. Paul & S. C. R. Co., 21 Minn 358; Papooshek v. Winona, etc., R. Co., 44 Minn. 195, 46 N. W. 329; Grand Rapids & Ind. R. Co. v. Heisel, 47 Mich. 393; Gustafson v. Hamm, 56 Minn. 334, 57 N. W. 1054, 22 L. R. A. 565; Theobald v. Louisville, N. O. & T. R. Co., 66 Miss. 279, 6 So. 230, 4 L. R. A. 735; Starr v. Camden & A. R. Co., 24 N. J. Law (4 Zab.) 592; White v. Northwestern North Carolina R. Co., 113 N. C. 610, 18 S. E. 330; Lawrence R. Co. v. Williams, 35 Ohio St. 168; Harmon v. Louisville, N. O. & T. R. Co., 87 Tenn. 614; Hodges v. Seaboard & R. R. Co., 88 Va. 653, 14 S. E. 380; Hanlin v. Chicago & N. W. R. Co., 61 Wis. 515; Frey v. Duluth, S. S. & A. R. Co., 91 Wis. 309. See § 817 et seq. See, also, cases cited under first note of § 841, ante. But see to the contrary cases cited under second note of preceding section and among others Mobile & M. R. Co. v. Alabama Midland R. Co., 116 Ala. 51; Harri

son v. New Orleans Pac. R. Co., 34 La. Ann. 462.

734 Western R. Co. of Ala. v. Alabama G. T. R. Co., 96 Ala. 272, 11 So. 483, 17 L. R. A. 474; Ford v. Santa Cruz R. Co., 59 Cal. 290; Florida So. R. Co. v. Brown, 23 Fla. 104, 1 So. 512; South Carolina R. Co. v. Steiner, 44 Ga. 546; Dantzer v. Indianapolis Union R. Co., 141 Ind. 604, 39 N. E. 223, 34 L. R. A. 769. An abutting owner cannot recover for obstructions placed on that half of the street opposite his property.

Pittsburgh, C., C. & St. L. R. Co. v. Noftsger, 148 Ind. 101, 47 N. E. 332. But this case also holds that an abutting owner cannot recover damages for increased danger from fire nor for injuries suffered by the public at large. Fort Scott, W. & W. R. Co. v. Fox, 42 Kan. 490, 22 Pac. 583; Adams v. Chicago B. & N. R. Co., 39 Minn. 286, 39 N. W. 629, 1 L. R. A. 493; Randle v. Pacific R. Co., 65 Mo. 325. But see Jacksonville, T. & K. W. R. Co. v. Thompson, 34 Fla. 346, 16 So. 282, 26 L. R. A. 410.

The limit of this work forbid a further discussion of the subject or citation of authorities and the reader is referred to Lewis, Em. Dom. (2d Ed.) pp. 242-248, inclusive, where an exhaustive citation of cases is made by states with a

abutting owner. In a recent text book on Eminent Domain,735 the author said: "The existence and operation of a commercial railread in the street is necessarily some interference with thoserights, and, to the extent of such interference, a right to compensation exists. For any physical injury to the abutting property, as by casting cinders upon it, polluting the air with smoke and gases, or by vibrations communicated through the soil to an extent which would be actionable if the property were not a street, a recovery may be had. With respect to this class of injuries the abutting owner's rights are the same as though the street were private property, and these rights are discussed elsewhere. The tendency of the later decisions is towards the protection of privaterights and the more accurate ascertainment and definition of those rights. It is now well settled by the great weight of authority that, where the fee of a street is in the abutting owner, he may recover for the additional burden caused by a commercial railroad laid on the street. These cases necessarily proceed upon the basis that a commercial railroad is not a legitimate street use. The cases which deny compensation in any case, on the ground that. such a railroad is a legitimate use of a highway, are so clearly against good sense and reason that we do not think they require further discussion. The right to recover when the fee is in the public is involved in so much doubt by the authorities that we have collected in a note all the cases which involve the question, with such comment as seems appropriate. We have allowed this to stand as it was written in the first edition. Since then it has become very firmly established that the abutter, though he has not the fee of the street, has certain private rights of access, light and air, which are as much property as the lot itself; also that any interference with such rights by a use which is not within the legitimate purposes of a highway, is a taking within the constitution."

§ 844. The use of highways by street railways.

The considerations given in the preceding sections as forming a basis for some of the reasons holding the doctrine there stated, that the use of a highway by a commercial steam road imposes an

discussion of the points decided in each case.

735 Lewis, Eminent Domain, sec. 115.

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