Donnaher v. State

Mr. Justice Clayton

delivered the opinion of the court.

The agreed state of facts contained in this record, presents this as the prominent question for investigation; whether the Jackson and Brandon Railroad and Bridge Company have a right to construct a railroad through the streets of the city of Jackson, without an assessment and payment of damages for such use of the streets.

The statute incorporating this company passed February 5th, 1836, gives power to it to extend its railroad, so as to intersect or unite with any other railroad, terminating in or passing through the city of Jackson, provided the road be so constructed as not to interfere with the passage of any public street of said city. There has been various legislation on the subject of this railroad since, but the above provision has been retained.

The statute of 1823 reserves to the legislature the right to dispose of the entire two sections of land, designated by the commissioners to locate the seat of government, except the streets and the lots which may be sold from time to time. How. & Hutch. 60, sec. 11; Poin. Rev. 486. This vests the title to the streets in the corporation of the city, and deprives the legislature of the power to dispose of them, except so far as thejns publicum, or the right of eminent domain may authorize it. This right of eminent domain always exists, unless the state has absolutely parted with it by grant. There is a necessary exception in the title to all property, that if it be wanted for public use, it may be taken for such purpose. But this is always upon the condition, that just compensation shall be made to the owner. The principle has its origin in the common law. The King v. Ward, 31 Com. Law R. 96, and is enforced by our constitutional provision, “ that private property shall not be taken for public use without just compensation.” This principle applies as forcibly to the streets in this instance, as to private property in other cases. In the case of The Tuckahoe Canal Company v. The Tuckahoe Railroad Company, 11 Leigh, 76, the court says: — “ It is not perceived that the property of a corporation is less liable to the exercise of the jus publicum, than the property of a private individual. In both cases, the private right must yield to the necessities of the public, and in both the public must make compensation for the loss. This was a case of opposite franchises or easements. ■

In a case in 3 Hill’s N. Y. Rep. 570, the court says : — “ The claim set up is an easement, not a right of passage to the public, but to the company, who have the exclusive privilege of using the track of the road in their own peculiar manner. The public may travel with them over the track, if they choose to ride in their cars; but nevertheless the company are not the public, nor can they be regarded as standing in the place of the public. They are a private company, an ideal individual, and to be treated as an individual.” Presbyterian Society in Waterloo v. Auburn and Rochester Railroad Company. That case arose in an effort to subject a public highway to the use of a railroad.

The progress of public improvement, and the increase of trade and commerce may render changes in roads, streets and canals necessary. An easement of one kind may be made to give place to one of a different character, of more enlarged utility. Great and acknowledged public improvements lead to corresponding changes in the rights to be affected by them, accompanied however with the just condition of making compensation.

This case differs from that of The Lexington and Ohio Railroad Company v. Applegate et al. 8 Dana, 289, in two essential particulars. 1st. The corporation there gave its assent to the use of the streets of Louisville by the railroad. 2d. The owners of the lots there claimed compensation. In this case the corporation has not given its assent; and the owners of the lots are not before us. The right to the streets in this case being in the corporation of Jackson, they cannot be subjected to the use of the railroad, without the consent and contract of the corporation, or without the assessment and payment of damages according to law.

Atpresent'we are strongly inclined to the belief, that the owners of lots adjacent to the track of the railroad, will have no claim to compensation. They have no right of soil in the streets; and the charter of the railroad company restricts the use to such bounds, as will not interfere with the passage of, the streets. Moreover the salutary maxim will apply to the company, that “ they must so use their own rights, as not to injure another.” 31 Eng. Com. Law Rep. 97; Dudley’s S. Car. R. 138. This point, however, need not be decided. See Barclay v. Howell, 6 Peters, 514.

We have no doubt that the corporation has the power to regulate the mode of propelling the cars within its limits, to say whether steam or horse power shall be employed, and to prescribe the rate at which they may move. This results from the same principle, which authorizes it to control the speed of carriages and of horsemen —■ the principle of necessary protection to the safety of its citizens and their property.

The defendant having failed in his attempted justification, the judgment is affirmed.

Mr. Justice ThacheR dissented ; because he believes the company possess the right of way through the streets without any compensation, and because he considers the company has a right to use any species of locomotive power, subject to police regulations to be established by the corporation of Jackson.