Packet Co. v. Sorrels , 50 Ark. 466 ( 1887 )

Battle, J.

On the 25th of May, 1885, Theodoric E. Sorrells filed his complaint in the Jefterson circuit court, alleging, among other things, the following :

That in the year 1830 John W. and James T. Pullen purchased from the United States the land on which the city of Pine Bluff is situated, and in the same year sold a part of the same to one Anthony H. Davis ; that in the year 1838 Davis sold to James J, Ohowning, William II. Pinkard and Henry S. Dawson a three-foúrths interest in th’s land.

That in the year 1838 the then owners of the land caused the same to be surveyed off into lots and blocks, and in the same year filed in the office of the clerk of Jefferson county a plat and plan of the city of Pine Bluff, designating and naming the various streets and alleys and dedicating to public use the streets of the city.

That long after the filing of the plat of the city, plaintiff became the legal owner in fee of lot number 5 in block number 14, and has been in peaceable and adverse-possession thereof since bis purchase, for a period of twenty-four-yéars. That said lot is situate at the corner of Barraque and Dardenne streets, fronting 60 feet on Barraque street, running 154 feet north on Dardenne street near-the Arkansas river.

That the defendants, John D. Adams, Jas. H. Reed,. John H. Harbin and Samuel Hilzheim, composing the Arkansas River Packet Company, have, in violation of the rights of plaintiff, erected a warehouse in the middle of Dardenne street, within ten feet of the lot, thereby almost completely obstructing said street, and dug a deep ditch at the north end and near the- center of the street for the purpose of making a steamboat landing* That the ditch is so constructed as to reach the river near the north end of said lot, and that the erection and maintenance of the warehouse on said street and the ditch prevent the free use and occupation of the lot and damage his property; and were made without his knowledge and consent.

The complaint then prays that the court make an order restraining and enjoining the defendants from keeping said warehouse any longer in Dardenne street, and that the defendants be required to re'move the samé from said street and to fill up the ditch.

To this complaint defendants filed an answer, in which they admit that they have a warehouse on the north end of Dardenne street, north of Barraque street, but deny that the same, in any manner interferes with the property of plain tiff, or that by the erection thereof they violated any of his rights, and allege that Dardenne street, north of Barraque street has been' set apart and designated by the city council of Pine Bluff as the city wharf, and that the ditch complained of by plaintiff was dug and.is maintained as a passage to and from steamboats for the convenience of loading and unloadingfreight and passengers, and that the same was necessary for such purposes. They positively deny that the excavation of. the ditch or the maintenance of the warehouse upon Dar-denne street has, in any manner, interfered with or in the slightest degree injured the property óf plaintiff, or that the same is a nuisance, or that the value of plaintiff’s property has in any way been impaired, or injured thereby, but that such.improvements have increased its value. They pleaded the ordinance of the city of Pine' Bluff establishing the city wharf, and annex to their answer a certified copy of the city ordinance establishing Dardenne street north of Barraqúe street to the lower water mark on the Arkansas river as such wharf.

Plaintiff demurred to the answer because- the facts therein stated are not sufficient to constitute a defense; and the court sustained the demurrer to so much of it as pleads the ordinance of the city council of Pine Bluff as authority for building the warehouse, and in other respects overruled it; and, the defendants refusing to plead further, the court rendered a decree, granting an injunction, and commanding defendants, within thirty days, to move the warehouse from Dardenne street. And defendants appealed.

In Taylor v. Armstrong, 24 Ark., 102, this court held, that the interest which the public acquires by the dedi-. cation of land for a street or other highway,is merely an easement or right of passage over the soil, and that the owner, who made the dedication, still retains the fee, together with all rights of property not inconsistent with the public use; and that a subsequent conveyance by such owner, of a lot on a street laid off and dedicated by, him to the public use, in the absence of a reservation, expressed or implied, to the contrary, vesta in bis grantee the fee in the street to the center as a part and parcel of the grant, subject to the right of the public to use it for the purposes of a.street; and that, in the absence of proof, the presumption is that the owners of lots on each side own such fee to the center of the street.

Mr. Kent, in his Commentaries, says: “Every thoroughfare which is used by the public, and is, in the language of the English books, ‘common to all the king’s subjects’ is a highway, whether it be a carriage way, a horse way, a foot way, or a navigable river. ‘It is,’ .-ays Lord Holt, ‘the genus of all public ways.’ The law with respect to public highways and to fresh water rivers is the same, and the analogy perfect as concerns the right of soil. The presumption is, that the owners of the land on each side go to the center of the road, and they have the exclusve right to the soil, subject to the right of passage in the public. Being owners of the soil, they have a right to all ordinary remedies for the freehold. They may maintain an action of ejectment- for encroachments upon the road, or an assize if disseized of it, or tresspass against any person who digs up the soil of it, or cuts down any trees growing on the side of the road, and left there for shade or ornament. The freehold and all profits belong to the owners of the adjoining lands. They may carry water in pipes under the highway, and have every use and remedy that is consistent wiih the public servitude or easement'of a way over it, and with police regulations. The established inference-of law is j that a conveyance of land bounded on a public highway carries with it the fee to the center of the road, as part and parcel of the grant. The idea of an intention in the grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to. the adjoining land', is never to be presumed. It would be contrary to universal practice; and it was said in Peek v. Smith, that there was no instance where the fee of a a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration, or something equivalent thereto, to sustain such an inference; and it may be considered as the general rule, that a grant ot land bounded upon a highway or river carries the fee in the highway or river to the center of it, provided the grantor at the time owned to the center, and there be no words or specific description to show a contrary intent.” 3 Kent Com., marginal page, 432.

1. Municipal Corporations: Authority overland dedicated for streets. It follows, then, that land dedicated by the owner as street to the use of the public cannot lawfully be used for any other purpose; and that if lots bounded by have been conveyed by such owner, without reservation •of the fee in the street, the right to the use and possession of the one half of the street adjoining such lots would pass to the person owning the lots, when the right to use the same as a street ceases to exist; and that the authorities of the town or city in which the same is situate cannot lawfully appropriate or divert it to uses and purposes foreign to those for which it was dedicated ; nor is it within the power of the legislature to authorize a disposal or diversion of it to uses foreign to the dedication. The legislature cannot authorize its appropriation to private purposes; nor to public purposes, except in the manner private property can he taken for the use ot the public under the right of eminent domain. In re John and Cherry Streets, 19 Wend., 659; Warren v. Mayor, of Lyons, 22 Iowa, 351; LeClerq. v. Gallipolis, 7 Ohio, 354; 2 Dillon on Municipal Corporations, (3d Ed.) secs. 650, 651 and authorities cited.

In Hot Springs R. R. Co. v. Williamson, 45 Ark., 429, it was held by this court, that “under, the constitution of 1874, which . provides, that <pri vate, property shall not bes taken, appropriated or damaged without just compensation/ the owner of premises abutting upon a.street in a city or town .may recover from a railroad company the damages resulting'to his’premises by. the construction of its road-bed' or other structures, on its right of way along the street, in such manner as to. obstruct access to the premises, though he have no interest in the fee of the street, and no part of his premises be taken, .and the-road or other structure be skillfully or properly built.”

2. Injunction : Against obstruction of street: Bill for.

3. Same: Same Answer. Appellants, if the pleadings be true, bad no right to obstruct Dardenne street by their warehouse. The ordinance of the city council did not confer that right upon-them. If appellee has sufiered a special and peculiar injury thereby, not sufiered in common with the public affected by the obstruction, he has his right of action for damages, or may maintain a suit for injunction against its continuance and for its abatement. Draper v. Mackey, 35 Ark., 497; Penn v. Bridge Co., 13 How., 518; Railroad Co. v. Ward, 2 Black., 485; Bemis v. Upham, 13 Pick., 169; Wellborn v. Davies, 40 Ark., 83; Railroad Co. v. Cohen, 50 Ga., 461. But to maintain a suit in equity for injunction he should aver and prove the specific injury. A general allegation that damages have or 'will result is not sufficient, but the facts which gc to show that such an injury-has or will occur should be stated. But he only shows that the warehouse was erected in the middle of Dar— •denne street, within ten feet'of 'his lot, thereby almost completely obstructing the street, and that the ditch and warehouse prevent the free úse and occupation of his lot, and damage him. In their answer appellants deny that the warehouse and ditch, in any manner interfere.with his property, or have in the slightest degree injured it, hut, on the contrary, have increased its value. The complaint does not show that the warehouse and ditch are in that portion of the street abutting appellee’s lot, or that he has suffered a special or peculiar injury, which is not denied by the answer. The denials in the answer are as broad and specific in this respect as the allegations in the complaint. The demurrer to thé answer should have been overruled.

The decree of the court below is reversed, and this-cause is remanded with leave to both parties to amend their respective pleadings, if they so desire, and for-further proceedings.