Page images
PDF
EPUB

On the other side-most of the sixteen witnesses for the appellant, (and all of them who testified as to this point,) expressed the opinion, that the railroad itself was no obstruction whatever to the safe, free and convenient public use of the entire street by all who might choose to use any portion of it; and they stated facts strongly conducing to that conclusion. All of them expressed the opinion, that the prosperity of Louisville, and the public interest had been promoted by the use that had been made of the railroad from Portland to Sixth cross street in the city, and would be still more advanced by the completion and use of the continuous line of railroad communication, according to the charter and the avowed purposes of the company.

No one of them considered the use as made of the road even with steam power as being a nuisance, or as injuriously affecting the value of property the productiveness of business, or security of persons on Main street, between Sixth and Thirteenth, or elsewhere. Most of them were of the opinion, that as steam when well regulated as a motive agent, may be more easily and promptly controlled than horse power cars propelled by steam with a velocity not exceeding six miles an hour, were more safe to the public than cars drawn by horses, and were not more perilous or inconvenient than hacks, stages and omnibusses..

Some of them proved that cars are run by steam through some of the towns and cities in Europe, and through Orleans, Lancaster, Philadelphia, Richmond, Frederick, and several other town and cities in the United States, without having been considered nuisances, so far as they had heard or believed; and that some of the streets, through which long trains of cars moved by steam, are frequently running, are narrower, more populous and much more thronged than Main street in Louisville, between Sixth and Thirteenth cross streets. Some of these witnesses, also, indicate by their testimony, more than an ordinary acquaintance with railroads and steam power -and all of them state facts conducing persuasively to sustain all the opin ions they have expressed.

It neither appears, nor has been suggested, that the speed of the cars, when propelled by steam on Main street, in Louisville, had ever exceeded the prescribed rate of six miles an hour; and it does appear clearly that the travelling and commercial public would be benefitted by the continued use of the railroad, as constructed and hitherto, used, from Portland to the heart of Louisville; and the more especially, during that season of the year when the boats cannot pass over the falls of the Ohio river.

Upon these facts, the Chancellor's decree is to be revised, and either affirmed or reversed. The streets of Louisville were designated, not only for subserving the public purposes for which the town was established by law; but also, for the especial convenience and enjoyment of such persons as should purchase and hold lots contiguous to them. The title to such lots carries with it, as essential incidents, certain services and easements, not only valuable and almost indispensable, but as inviolable as the property in the lots themselves. And, therefore, the owners and occupants of houses and lots on Main street, between Sixth and Thirteenth, have a peculiar interest in that street, which neither the local nor general public can pretend to claim-a private right of the nature of an incorporeal hereditament, legally attached to their contiguous ground--and incidental title to certain facilities and franchises assured to them by contract and by law, without which their property would be comparatively of but little value, and would never have been bought by them.

Although, therefore, an ordinary public way may be discontinued or ap plied to some other public purpose than that for which it was first establish

ed, without any legal liability for pecuniary compensation to the local public, or to any owner of adjoining land-because neither such public or proprietor had any right of property in the way or any other legal interest in it than that which was common to all the people, and though, also, the Mayor and Council holding the legal title to the streets of Louisville, in trust chiefly for public purposes, might regrade and improve those streets, or authorize the public use of them, in any mode consistent with the objects to which they were first dedicated, without obtaining the consent of the owners of the lots thereon, and without making any compensation to themnevertheless, there may be no constitutional authority for closing or discontinuing any one of the streets, or even for applying it to any public or private use, incompatable with any one of the ends for which such street was established, without first obtaining the consent of the owners of lots thereon, or without making just compensation to them for any damage which may result to their property, corporeal and incorporeal, from such exclusion, discontinuance or new application of the street.

The commonwealth, with all her sovereign right of eminent domain cannot take away private property, even for the most imperious or important public use, without either the owner's consent, or the payment to him of a just equivalent in money.

But, we cannot concur with the Chancellor in the opinion, that the commonwealth could not constitutionally exert her eminent authority, to take private property for public use, through the instrumentality of the railroad company. Public roads of all sorts, may be constructed wherever the sovereign shall be pleased to have them; and if the public choose to avail itself of the capital and liberal spirit of select persons for insuring the construction of an important highway, the persons who may agree thus to appropriate their own funds, may surely be permitted to enjoy, as some equivalent for the expenditure, the profits of tolls prescribed by law, for using the road, and may be authorized to construct and preserve it by all the means which the commonwealth could constitutionally employ. The sovereign will can be effectuated only by the instrumentality of agents. And in the case just supposed, the private association should be deemed the agent of the public, although as to its conventional privileges and profits, it may be only a private corporation; and the road also should be consid ered, in the popular sense, a public highway.

In 4 East, (2nd ed.,) p. 21, it was adjudged, that though the lord of the fee was entitled to the profit arising from the use of an established road, yet it was a public highway" le haut chemin le Roy." When the legis lature incorporates an association of private persons for the purpose of making a turnpike road or a railroad, the public welfare should be presumed to be the legislative object of the enactment; and though the interest of the corporators be private and exclusive, yet the construction of the road should be deemed to have been authorized for the public good, as the chief and primary object; and the act of incorporation, and the priviledges granted to the corporators should be considered only as a means for effecting the public end, and as secondary and incidental only.

And to accomplish such an end by such means; the sovereign power may, undoubtedly, as we think, exert through such an instrumentality, all the constitutionally authority which it might employ, for the effectuation of a similar object by any other agency, or in any other mode. The railroad is applied to "public use," though the profits are appropriated to private

use.

And the legislative authority to take private property implied, that when so taken it would be appropriated to the use of the public. The right of

eminent domain has long been exercised in similar modes here and elsewhere, without question, and in instances almost innumerable. In this manner nearly all the turnpike roads have been made, and all the railroads; and thus, too, are mills established; by the condemnation of private property on the application of persons who desire to make profits by the tolls:and the cities of Lexington and Louisville, and other incorporated cities, thus only exercise the power of opening new streets, by taking private property, upon the payment of the assessed value of it, to the owner or

owners.

This proposition was considered so indisputable, that this court, in the case of O'Hara vs. the Lexington and Ohio railroad company, (1 Dana, 232,) decided that an appeal by O'Hara, from a judgment on an assessment of damages upon a writ of ad quod damnum, should be affirmed without argument as a delay case-the only ground for prosecuting the appeal being the assumption that the legislature had no constitutional power to authorize the company to take his land without his consent, even upon paying the assessed value of it. Judge Underwood did not, as the Chancellor seemed to have imagined, dissent from the opinion that there was no plausible ground for seeking a reversal of the judgment. In that opinion he fully concurred; but, as the report of the case itself will show, he thought the submission was premature, only because the appellant had not filed the record, and the case was submitted by the appellee, upon a record filed, without the appellant's concurrence, only a few days after the appeal had been taken.

In such a case, the court did not consider it necessary to write an elaborate opinion, but was contented with a suggestion of the general reasons which it deemed satisfactory-believing, as it did, that, upon such a point as that then involved, such a brief and comprehensive opinion was better than much amplication.

The brevity of the opinion ought not, therefore, to have been assumed, as it has been by the Chancellor, as proof that the judgment of the court was hasty and inconsiderate. A similar judgment has been virtually rendered in many other cases in this court and in many other courts; and the Chancellor's decree exhibits the only opposing judicial opinion we have seen or heard of; "Aliquando bonus dormitat Homerus."

But there was no writ of ad quod damnum in the city of Louisville. Nor was such a proceeding necessary unless the railroad or the use of it should be deemed to have been a purpresture or a nuisance operating to the damage of private property or the injury of some private right.

The purchasers of property on Main street, as on every other street, took their respective lots of ground subject to all the contingencies that might arise to it and to the use of it, from all the uses which might ever be made of the street as a publie way, consistently with the objects of its original dedication.

If the construction of the railroad and the use made of it were not inconsistent with those public objects, nor with private rights, the Mayor and council of the city of Louisville had an unquestionable right to authorize such construction and use of it, without any ad quod damnum. Unless the railroad on Main street be, per se or otherwise, a nuisance, either public or private, then, as all persons have an equal right to use the street, with carriages for transportation, consistently with the objects of its dedication, we cannot doubt that the railroad company, under the sanction of its charter and with the permission of the local municipality, had a right to lay its own iron rails in the streets, for the purpose of facilitating the use it might rightfully make of it, in cars adapted to the improved mode of transportation

on railways. And unless the railroad, either in itself, or in the use made of it, should be considered a purpresture or other nuisance injuriously af fecting private rights, and which even the Legislature could not constitutionally authorize, there could have been no necessity for an ad quod damnum to assess damages which no person would have been entitle to claim.

The supreme law requires such an inquisition only, when private property is taken and applied to public use; and private property, could not be considered as being thus taken or applied when there is neither any injury to or deprivation of any private right. Any injury to private right by either the construction or the use of the railroad, would be a private nuisance.

And if the road, or the use made of it, did not thus operate, there was no necessity for an inquisition concerning damages. And therefore, in the language of Justice Holroyd, in Rex vs. Russell et al (13 Eng. Com. Law Rep. 254,) we are clearly of the opinion that, unless the railroad, or the use made of it, should be considered, upon the facts and merits, a nuisance, the neglect to make them the subject of an ad quod damnum, will not make them so."

[ocr errors]

Nor, if their be no such nuisance, could there have been any breach of the compact with Virginia, or an impairment of the obligation of any contract implied in the purchase of lots by the appellees and other citizens of Louisville.

If either purpresture, or other nuisance, injurious to the private rights of the appellees be clearly established, the Chancellor may have had jurisdiction to enjoin such wrong.

But both public policy and a long series of adjudged cases, require that a public improvement, so benificent in its general operations and results, and more especially when, as in this case, sanctioned by the Legislature of the local public, should not be destroyed or suspended by the injunction of a Chancellor unless strong reasons for doing it be conclusively manifested. The only decisive or pertinent question to be judicially considered in this case, is, therefore, whether a purpresture or other nuisance injurious to private rights, has been satisfactorially established by the appellees.

A purpresture being the appropriation to exclusive private use or the enclosure for such use, of that which belongs to the public-it seems to us, that the facts exhibited in this record, will not authorize the conclusion that the railroad itself, abstracted from the use made of it in the city of Louisville, was ever such a nuisance or wrong as is technically denominated purpresture.

The opinions and the facts presented in the record preponderate decidedly against any such deduction. And if, as should be presumed, in the absence of proof to the contrary, the road has been constructed as was requir ed by the corporate authorities of Louisville, and as it certainly might have been constructed, it may not obstruct the public use of the whole street by any person who may wish to use any portion of it in any accustomed mode. And it is evident that the entire street, railroad and all, has been used by the public as a common highway for wagons, carriages, horses, and footmen, without objection by the railroad company, or even the assertion of a right in the company to any exclusive use of that part of it covered by and contained within its rails. It appear to us, therefore, that there has been neither an enclosure of any part of the street by the company for its exclusive private use, nor any appropriation of any portion of it to such exclusive use, in merely construcing the railway. If such exclusive use should ever be monopolized, or attempted, then it will be time enough to denounce the railroad as a purpresture. It is premature to utter such a denunciation

now, merely because the charter vainly purports to confer the empty and unavailing right to such use.

Nor for the same reasons, can the railroad, in itself alone, according to the evidence and all proper deductions and presumptions, be deemed a nuisance in any effectual and injurious sense.

This is virtually conceded by the Chancellor's final decree; for if he had considered the mere rails in the street as being a nuisance, he would as we presume have not left the nuisance remaining as he has done, by only enjoining the running of cars upon the rails; but would have also requir ed the removal of them, and a restoration of the street from their noxious effects.

Did the use which was made of the railroad on Main street operate as a nuisance, injurious to private rights? This is the only remaining question we deem worthy of grave consideration. As already intimated, we cannot concur with the opinion expressed by the Chancellor, that the possibility that the company may at some future day, arrogate to itself the exclusive use of the railroad track along Main street, shows, or tends in any degree to show, that either the road itself or any use hitherto made of it, should be deemed a nuisance. Nor can we doubt that the fact, that the appellants may have lost something of interest merely, such as a reduction in the profits of their business, or in the value of rents of houses, is insufficient to show a nuisance, or authorize an injunction. There must have been an invasion or deprivation of some right, before they could be entitled to any relief in a court of equity.

We have admitted that neither the constituted authorities of Louisville nor the legislature of the State, could either license a private nuisance, or could take or encroach on private property, without the owner's consent, or the payment to him of adequate damages, or could appropriate any street in Louisville to any use to which it was not originally dedicated, unless the consent of all those immediately interested in such street should be given, or just compensation should be first made to them.

But, even though some persons owning property on the railroad street, may be subjected to some inconvenience, and even loss, by the construction and use of the road, yet if the use made of the road be consistent with the just right of all, such persons have no right either to damages, or to an injunction; because they purchased their property and must hold it, as all others purchase and must hold town lots, subject to any consequences that may result, whether advantageously or disadvantageously, from any public and authorized use of the streets, in any mode promotive of, and consistent with, the purposes of establishing them as common highways in town, and compatible with the reasonable enjoyment of them by all others entitled thereto.

As the Legislature and the local authorities of Louisville authorized the construction of the railroad through that city, and also authorized the company to employ upon it cars and steam power; and the more especially as such improvements in the means of transportation must be useful to the travelling and commercial public, and in many respects, obviously advantageous to the local public of the city itself; it does seem to us that, prima facie, the ordinary and careful use of the road, as thus authorized and prescribed, should not be deemed a nuisance, public or private.

This deduction is fortified by the fact already suggested, that railroad cars, drawn by horses, and propelled also by steam, are permitted to pass through other cities in both Europe and America, and have not in any instance been adjudged nuisances; and the facts proved in this case corroborate the same conclusion.

« PreviousContinue »