Southern Pacific Railroad v. Reed

By the Court, Crockett, J.: This is an appeal by the Southern Pacific Bailroad Company from a judgment awarding damages to each of the respondents, severally, for lands in the City of San José, taken by the appellant for the use of its railroad. The respondent, E. P. Beed, was the owner of a considerable tract, containing about thirty acres, within the corporate limits of the city, and in the year 1862 laid it out into lots and blocks, fronting on a street called Dame street, which he opened and laid out through the property with a view to enhance its value. Subsequently, the Westera Pacific Bail-road Company obtained the right of way for its road through [260]said street, and damages to the amount of three thousand dollars were awarded to said Eeed and paid to him. by said company; and thereupon the track of their road was laid in the center of said street, and has ever since continued to be used for the conveyance of freights and passengers. In 1868 the city authorities, by ordinance, granted to the Santa Clara and Pajaro Valley Eailroad Company the right to lay their track through said street; but the right was not exercised, and the company assigned to the Southern Pacific Eailroad Company whatever rights it acquired in this respect under the ordinance. The street is eighty feet wide, and the Southern Pacific Eailroad Company has laid its track on one side of the street,-as near to the track of the "Western Pacific Company as could conveniently be done to permit of the safe passage of trains over the two roads. But there is left a very narrow space between the track of the Southern Pacific Eailroad Company and the sidewalk—too narrow to allow the safe transit of teams and vehicles when trains are passing over that part of the road. In the present action the Commissioners awarded to Eeed damages to the amount of two thousand dollars, which award was confirmed by the Court; and the company has appealed. The award is resisted on three grounds, to wit: First—That Eeed has already been paid by the Western Pacific Eailroad Company all the damages which he has sustained or to which he is entitled by reason of the use of the streets for railroad purposes. Second—That, as assignee of the Santa Clara and Pajaro Valley Eailroad Comjjany, the Southern Pacific Eailroad Company is authorized, by ordinance of the city, to lay its track through the street without the payment of damages to any one. Third—That the damages awarded are excess sive, and not justified by the proofs. But neither of these grounds is tenable. If it be conceded that Eeed dedicated the lands included in the street to public use as a highway for ordinary travel, with a view to enhance the value of his