Florida Southern Railway Co. v. Brown , 23 Fla. 104 ( 1887 )

The Chibe-Justice delivered the opinion of the court:

The appellee brought suit in the county of Alachua against the Florida Southern Railway Co. for damage to real estate claimed by him in the city of Gainesville. The •declaration alleges that appellee is the owner and has been •for a long time in the possession of a lot of ground on which a livery stable abutting on West Main street and two other lots on said street, and that he is the owner of the land to the centre of said street. That the defendant company in 1881 constructed its railroad on and along said street without his consent^ by which the rents which he had been receiving had been greatly decreased and the-value of his livery stable diminished by reason of said company permitting cars to stand on the track for unreasonable length of time, by emissions of smoke and cinders-from passing engines and the frightening of horses. The defendant demurred to the declaration. The questions as to the right of an owmer of real estate abutting a public highway to the soil to the centre of such highway, and the right of a railway to lay its track on his part of said street without his consent and without proceedings to have .it condemned in accordance with the law authorizing the taking of private property for public uses, are presented, It seems to be established that where a street or highway is the boundary of a lot or piece of land that the owner of such land_owns the soil to the centre of such street or highway subject to the right of the public to pass and repass over and along it. 2 J. R., 363 ; 1 Cowen, 240 ; 3 Kent’s Commentaries, 433 ; Garnet et ux. vs. J. St. A. & H. R. R. Co., 20 Fla., 889.

It seems also to be established that when no street^ or highway is specifically mentioned in' the conveyance, but the land is described by words or figures and abuts on a street, that the same rule prevails. Bisel vs. New York, &c., R. R. Co., 23 N. Y., 61.

The rule seems to be based on the supposed intention of the parties, and the improbability of the grantor desiring or intending to reserve his interest in the street when he had parted with his title to the adjoining land? Such intention will never be presumed. Ib.

Although the authorities are not without conflict we think the following principles may be considered as sustained by the weight of authority and are in consonance with sound policy:

1st. That when a person owns a lot on a public street of a town or city and the fee in the soil as far as the centre of the street, the laying of a railroad track along said street wholly or partly on his soil, without his consent and without taking it and paying just compensation therefor in accordance with the statute regulating the method by which private property may be taken for public use, is an unlawful appropriation of the property of such owner, and that he is entitled, to damage therefor. In such a case as the railroad unlawfully encumbers his land he is entitled to damage .for a depreciation of the market or rental value of his premises and for annoyances to his business or to family occupation. Grand Rapids & Indiana R. R. vs. Heisel, 38 Mich., 62 ; Nix vs. Lafayette, R. R., 67 Ill., 319.

2d. That where an adjacent owner of real estate on a street of a town or city is not the owner of the fee to the centre of the street, though he is not entitled as against a company laying a railroad along said street by proper authority to recover damages tor the appropriation of the soil of the street or for any incidental injury to his property from noise or smoke or like annoyances, yet he is entitled to the use of the street and may recover damages for' any special injury he may sustain, if by reason of the improper laying of said track or its improper use, his right to use it is unreasonably abridged or impeded. But in an action grounded on such’ injury the diminution of the value of the estate of plaintiff is not a ground of damage. G. R. & I. R. R. Co., vs. Heisel. Supra.

3d. When a railroad is laid along a street by competent authority in a manner not preventing the public from crossing over the same conveniently, having ample room on either side thereof for the passage of animals and vehicles and the room is sufficient to allow of their passing •each other on the same side of the track when going in opposite directions, such adjacent owner not owning the soil in the street or the part thereof appropriated by said road is not injured thereby. The demurrer should have been sustained. The declaration does not allege that the track of the railroad was on any part of the soil of plaintiff. It alleges that the railroad was laid on and through West Main street and that he owned the soil to the centre of the street. We cannot infer from this that it was laid in whole or partly on plaintiff’s side of the street. 25 N. Y., 526, and Randall vs. Jacksonville Street R. R., 19 Fla., 409. Eor this error the judgment must be reversed.

A former judgment on demurrer between the same parties, in a suit wherein the plaintiff claimed damages of the defendant for injury to his estate in consequence of laying and operating a railroad in the street on which his estate abutted, said plaintiff not claiming to be the owner of the fee in the soil to the middle of the street, is not res adjudicada in a suit by such plaintiff and against such defendant for damages when the declaration alleges ownership of the fee in the soil to the centre of the street. A judgment on demurrer in the first suit is no bar to a second suit when the plaintiff failed in the first suit on account of the omission of a material allegation which is supplied in the second suit. Gould vs. Evansville R. R., 1 Otto, 526.

An owner of an estate abutting on a street or highway and owning the fee in the soil to the middle of the street, while the same is subject to the use of the public for the ordinary requirements of travel on foot or by horses and vehicles, has such property in his portion of the street as will prevent the taking thereof or any part of his side of said street by the imposition thereon of an additional burden on the soil to the usual requirements of travel, to-wit: by the laying of a railroad track thereon and the operation thereof by steam without first making just compensation therefor. G. R. & I. R. R , supra ; South Carolina R. R. vs. Steiner, 44 Ga., 546.

Judgment reversed and cause remanded, with leave to plaintiff to amend his declaration.