Hobart v. Milwaukee City Railroad , 27 Wis. 194 ( 1870 )

Dixon, C. J.

The question involved in this case is one which has undergone very thorough examination in the courts of several of the other states, and it is improbable that any new argument or consideration can now be advanced upon either side of it. We shall not attempt to advance any, nor shall we rejieat what others have said, but content ourselves with a simple statement of our conclusion, with a reference to those cases by which it will be found to be fully sustained. The examination of the question has resulted in some conflict of opinion and decision in other courts. In New York it has been held, but by a court itself divided, three of the judges dissenting, that the establishing and running of a horse railroad in the public streets of a city is an imposition of an additional burden upon the land of an adjoining proprietor covered by such street, and that such proprietor, being entitled to a compensation therefor, may maintain a suit to enjoin until compensation has been made. Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404. But in the case of The People v. Kerr, 27 N. Y. 204, Emott, J., was of the contrary opinion, holding that the building and operating of such road created no additional burden, so that the weight of opinion, so far as any has yet been expressed by the judges of the court of appeals, may be said to be very nearly evenly balanced. Opposed to the above mentioned decision are the decisions in Ohio, Louisiana and Connecticut, where the question has been directly adjudicated, and in Massachusetts and some other states, where the contrary principle has been most clearly assumed. Street Railway v. Cumminsville, 14 Ohio St. 523; Brown v. Duplessis, 14 La. An. 842; Elliott v. Fair Haven & Westville R. R. Co., 32 Conn. 579; Sargent v. Ohio & Mississippi Railroad Co., 1 Handy, 52; Commonwealth v. Temple, 14 Gray, 75; Chase v. Sutton Manufacturing Co., 4 Cush. 152; New Albany & Salem R. R. Co. v. O’Dailey, 12 Ind. 551. The court of Ohio holds to what may be regarded as a middle doctrine between that of the majority decision in New York and the decisions in Louisana and Connecticut, that authority to lay down the necessary structure for a street railway in a common highway or street, and to run cars thereon for the carriage of passengers for hire, may be lawfully granted to a company incorporated for that purpose, without any compensation to the owners of adjoining lots, except where some private right of such owners is thereby impaired. That court holds the doctrine that there exists in the owners of adjoining lots a private right to have free access to their lands and buildings from the street, as the same was and would have continued to be according to the mode of its original use and appropriation by the public, and that there can be no change of such mode and adaptation of the street to new vehicles and methods of carriage and transportation which shall materially impair or destroy such right, unless by the consent of the owners, or upon the payment of due compensation to them. The same view was suggested -by two of the judges in The People v. Kerr, supra, p. 215. This doctrine has been somewhat freely criticised by some whose opinions are entitled to very great respect, but notwithstanding we are inclined to adopt it as being the most just and reasonable solution of the question which has fallen under our observation. It is a doctrine which imposes no unreasonable restriction upon the rights of the public in the use of its streets and highways, and which at the same time affords that protection to private or individual right which the spirit and principles of our constitution and form of government require. It is possible, as has been suggested, that it may sometimes prove embarrassing in practice to determine when and to what extent the private rights of adjoining owners have been infringed, but such embarrassments are inseparable from the consideretion and determination of all similar questions. The difficulties in the way of ascertaining and determining them, by no means disprove their existence or show that they ought not to be recognized and enforced.

For the reasons, therefore, which are so well stated by the court of Ohio, and in the other decisions and opinions to -which reference has been made, we hold that the laying down of the rails and running of the cars in the manner shown by this case, is not the appropriation of the street to a new use, requiring compensation to be made therefor to the plaintiff, unless he has shown that he will suffer some private and peculiar injury by being deprived of that free access to his premises which otherwise he would continue to have and enjoy. This also is claimed. The building upon the premises is a store, used and occupied by the plaintiff as a wholesale merchant, and into and from which many heavy articles have to be constantly received and taken by wagons and drays, which are loaded and unloaded in front of the store and upon the street in question. The custom, as described by counsel, though not fully shown by the affidavits, is to back the wagons or drays up to the curb-stone or sidewalk, and to discharge or receive freight to and from the store across the sidewalk. The laying of the rails and running of the cars on that side of the middle of the street where the store is, though near the middle, will interfere with and prevent this. custom. Sufficient space will not be left between the curb-stone or sidewalk and the railway track, for the teams with wagons or drays to stand at a right angle with or crosswise of the street. The heads of the horses will come in contact with the passing cars. Such is the obstruction of which the plaintiff complains, or the private and peculiar injury for which he seeks redress. Has he any such private right or easement in the street in front of his store ? It is clearly our opinion that he has not. The public authorities may permit such use of the street so long as they please, or until public convenience demands it should cease; but the plaintiff cannot insist upon it as a right in himself. When the space thus occupied by his teams is required for public travel, or the passage of vehicles of any kind authorized by the public, his occupation becomes an obstruction and a nuisance, and he must turn his teams the other way, or lengthwise of the street, which may be done and yet the loading and unloading take place without any very great additional trouble or inconvenience to him. At all events he has no right to insist upon such use and occupancy of the the street when the public authorities have signified their unwillingness, as they have done by authorizing the laying down of the railway track in question.

. By the Court. — The order appealed from is reversed, and the cause remanded for further proceedings according to law.