Carson v. Cent. R.R.
Before: Currey, Rhodes, Sanderson
Synopsis
Damage from Building Railroad on Street.—The Legislature may grant the right to lay down and construct a railroad upon public streets without providing for compensation for the damage to the owners of property along the line of such street, provided the owners of the property along the lino of the streets are not the owners of the contiguous land usque ad filurn vice.
Liability of Railroad Company for Damage. — If an Act of the Legislature authorizes the laying down in a public street of a railroad, a switch-turnout, and side track, the laying down of the switch-turnout and side track and the use of it is the exorcise of a lawful right, from which no liability for damage for consequential injury arises, unless there is some misconduct or negligence.
Proof that Railroad Turnout is a Nuisance.—When a company is authorized by law to construct a railroad in a public street, and necessary switches and turnouts, and the road is built having switches and turnouts, the presumption of law is, that the switches and turnouts are necessary, and one complaining that they are a nuisance has cast upon him the bnrden of proving that they are so.
Injury from Building Street Railroad. — The mere consequential disadvantages of a street railroad to a particular locality, and its consequential detriment to property along its line, cannot be the subject of a private action, and such injury must be regarded as damnum absque injuria.
Evidence of Damage Sustained by Railroad Turnout.—Where a street railroad company is authorized by law to build necessary switches and turnouts, and constructs them, a plaintiff who sues to abate a turnout as a nuisance cannot introduce evidence of the damage he has sustained until he has first introduced evidence tending to show that the switch and turnout are not necessary.
Turnout on Street Railroad.—If an Act of the Legislature grants the right to build a street railroad with the proper and necessary switches and turnouts, and a turnout and short side track are made from the main track towards and along the sidewalk, upon which the cars run for the purpose of standing until other cars pass and stop to allow passengers to make an exchange of cars, this is a switch and turnout within the meaning of the Act, and the presumption is that it is a proper and necessary turnout.
Opinion — Currey
The opinion of the Court was delivered by
Mr. Chief Justice Currey, at the July Term, A. D. 1867, before Mr. Justice Crockett and Mr. Justice Sprague became members of the Court:
An Act was passed in 1862 granting to certain persons named, and their associates and assigns, the right to lay down and maintain an iron railroad within the City and County of San Francisco, along and upon certain streets. (Laws 1862, p. 412.) These grantees assigned the right and franchise to them grantecl to the company now known as the Central [329]Railroad Company. In 1863 another Act was passed by the Legislature granting to said Central Eailroad Company some further rights and privileges, which, however, do not particularly affect the case before us. (Laws 1863, p. 117.) The Act of 1862 authorized the railroad company to construct its road with a single or double track, with the proper and necessary switches and turnouts along the entire route. Embraced within the line of the road was that portion of Taylor street lying between Turk and Eddy streets, on which the defendant constructed the road, adjoining which is situated the plaintiff’s lot and dwelling house, where she resided at the time the road was built. The defendant constructed a switch turnout and side track adjacent to and in front of the plaintiff’s property so near the sidewalk as to prevent a carriage standing there, while the switch, turnout, and track was occupied in passing by the defendant’s cars. The plaintiff alleges in her complaint that the street in front of her property is forty feet wide between the sidewalks, and that if the tracks of the road at that point had been properly laid, the same would not have interfered materially with the use of the property on either side of the street, but that the switch, turnout, and side tracks, which are wholly on the side of the street next the plaintiff’s property, together with the cars which are placed and allowed to stand there by the defendant, when not in actual use in carrying passengers, obstruct the use of the property so as to lessen its value and greatly to discommode her in its enjoyment, and for the injuries of which she complains she prays the Court for a judgment abating as a nuisance said switch turnout and side track, and for damages in the sum of five hundred dollars.
The defendant traversed the material allegations of the complaint, and justified the laying down of the turnout and side track, and the use thereof by the defendant, as proper and necessary, and as authorized by the Acts of 1862 and 1863.
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