Fairchild v. Oakland & Bay Shore Railway Co.

HENSHAW, J.

Plaintiffs, as tenants in common of a corner lot in the city of Oakland, brought this action against defendant to recover damages occasioned to their property by the construction and maintenance of an electric street railroad, the tracks of which" were laid close to the curbing along the line of their property. They recovered judgment and defendant appeals from' that judgment and from, the order of the court denying its motion for a new trial.

The first contention is that the proper operation of such an electric street railroad is not an additional burden or servitude upon the street so that an abutting property owner, not owning the fee of the street, is entitled to damages. Herein appellant relies upon

Montgomery

v.

Santa Ana R. R. Co.,

104 Cal. 186, [43 Am. St. Rep. 89, 25 L. R. A. 654, 37 Pac. 786], This case, however, is not in conflict with the later ease of

Smith

v.

Southern Pacific R. R. Co.,

146 Cal. 164, [106 Am. St. Rep. 17, 79 Pac. 868], where such a right of action is recognized as a right belonging to the property owner along a street so used, if he suffers any special or peculiar damage

[631]

apart from the general inconvenience which may have been worked to all property owners. This is precisely one of those rights of action for the damaging of property which, if it did not exist before, came into existence by virtue of our constitutional amendment granting a recovery for the damage as well as for the taking of property for public use. (Const., art. I, sec. 14.)

The second proposition advanced by appellant is that the ownership of the lot is not established, or at least is not established as pleaded in the complaint. With this, however, appellant has no real concern. It is sufficiently shown that all the ownership in the lot is vested in the plaintiffs. The satisfaction of the judgment relieves the appellant from any possibility of future litigation over the damage so occasioned and this is sufficient.