Dewey v. Chicago, Burlington & Quincy Railroad ( 1916 )

McCOY, J.

[1, 2] Plaintiff, by her complaint, alleged that she was the owner ánd in possession of a certain lot in the city of Lead, and of that portion of the street in' front of said lot to the center of the street, subject to the public easment; that defendant is a corporation engaged in operating a railway in said city; that in December, 1912, defendant without right, license, authority, or permission of any kind, and without malting compensation to plaintiff, laid its tracks on that portion of said' street in front of plaintiff’s- said premises, and in such a manner as to completely cut off ail access to plaintiff’s said premises for vehicles of any kind; that defendant is in possession of said portion of said: ■street, so the property of plaintiff, and withholds the same from plaintiff: Wherefore plaintiff demands judgment: (1) For the possession of said portion of said street so unlawfully withheld1 from her; (2) for $1,000 damages for the withholding of the same, besides costs. The defendant answered denying- the allegations of the complaint, excepting as expressly admitted, and alleged that defendant did construct its tracks along and1 in front of plaintiff’s said premises, bjr and with the express consent of plaintiff; that plaintiff acquiesced in the construction of said track and waived any pretended or claimed right she might then have had to' prevent the construction thereof, and but for such waiver and agreement defendant would not have laid said track as alleged in plaintiff’s complaint; that by reason of such consent, waiver, and acquiescence, plaintiff is estopped to- claim that the ■ construction of said track was wrongful or in violation of plain- • tiff’s right; -that said tracks were constructed at great expense and are used 'by citizens of Lead in- going to and from one part. of the city to another; that Lead is a municipal corporation having full control of the streets of said city and by ordinance expressly consented to the construction of said electric trolley line for the uise and benefit of-the citizens of said city. The issues were tried ’to the court without a jury, and findings made'tO' the effect that the 'allegations of the complaint were not true, and that the allegations of the'-answer were true, and judgment rendered in 'favor of defendant. The evidence was voluminous and conflicting in some particulars, and it will serve no useful purpose to reproduce the substance thereof in this, decision.

We are of the view that the findings are justified and fully sustained by the evidence. We are also of the view that no evidence was offered sufficient to sustain findings or judgment in favor of plaintiff on any theory. The streets of a city are in 'the possession and control of the city, and a party owning • and occupying a lot abutting on such street cannot maintain an •■action for possession of any portion of such street, or to eject ■ any other party therefrom who occupies by lawful consent of the city. If plaintiff had any cause of action at all under the pleadings, 'it was one solely for damages. Nio evidence was offered by plaintiff under any proper measure of damages. No evidence was offered as to 'the value of .plaintiff’s premises immediately before and' .after the laying of said track. Many assignments of error are alleged, all of which have been carefully considered, and we are of the opinion What no prejudicial error is pointed out or shown to exist on the record.

Finding no error in the record, the judgment and order appealed from are affirmed.

POLLEY, P. J., not sitting.