Chapman v. Oshkosh & Mississippi River Railroad

33 Wis. 629

Opinion

Cole, J.

The principal exceptions arising upon this record may be conveniently considered in connection with the following questions:'

1. Were the plaintiffs entitled to recover any damages which might be caused to their mill property on lots 2 and 3, and which resulted by reason of the condemnation of the Pine Street lots ?

2. Were they entitled to recover such damages as they could show that they had sustained as riparian proprietors of lots on Eox River, in consequence of the breakage of their river front by the erection of the railroad bridge across Eox River and the construction of the embankment ?

3. What damages, if any, were they entitled to recover for the location of the railway track in and along the west side of Pine Street, directly in front of their lots abutting thereon?

It is believed that these constitute the principal claims on the part of the plaintiffs for damages done to their property by the location of the track of the company in Pine Street, the construction of the embankment, and the erection of its bridge across Eox River, in the manner these several things were done.

In respect to the first head of damages, it seems to us very clear that the plaintiffs were entitled to compensation for any injuries done to their mill property situated on lots 2 and 3 by reason of the condemnation of the land in front of their lots on Pine Street. It is true, those lots were not directly contiguous to Pine Street, but the plaintiffs owned lots along Pine and Marion Streets, all of which were accessible from the mill through those streets. And it appeared from the evidence 1 that the lots on Pine Street were used by the plaintiffs in connection with their saw mill, for the purpose of the storage of lumber manufactured at their mill. This being the case, the lots upon Pine Street being necessary for the enjoyment of the mill property, and used in connection with it, if the mill property was depreciated in value or injured in consequence of those lots on Pine Street being less safe for the storage of lumber, this was a proper- matter to be considered in estimating the damages tbe plaintiffs sustained by the location of the track. It seems to us that it was just as legitimate a subject for compensation as though the saw-mill had been situated on some one of the lots on Pine Street, and the lots on that street had been inclosed in the mill-yard for the storage of lumber manufactured at the mill. The mill would be of little value without some safe and convenient place to stow lumber; and as the Pine Street lots were used in connection with the mill for that purpose, the injury done to the mill property in consequence of being deprived of the advantageous use of those lots was a proper element in estimating the plaintiffs’ damages. The case of Welch v. The Milwaukee & St. Paul R'y Co., 27 Wis., 108, is a direct authority upon this question, and shows that such damages may be recovered.

But it is said the plaintiffs had no right to compensation for injuries done to the mill property by being deprived of the use of the Pine Street lots in connection with the mill for the purpose of storage, and also to recover damages done to the Pine Street lots as a separate mill site. I am unable to find upon the record evidence that the plaintiffs made any distinct claim for damages on the latter ground. Some of the witnesses, in stating the elements which made up the damages done to the Pine Street lots, say that the location of the railway track in that street destroyed the use of those lots for a mill site. Of course, so far as those lots were concerned, the question was, how much they had been lessened in value in consequence of the location of the road in Pine Street. All remote and indefinite damages were excluded, but the direct depreciation of those lots in the market was a proper measure of compensation for the property actually taken. And as we understand the claim of the plaintiffs under this head, they only insisted that they should be allowed the value of the land taken, and any depreciation in the value of the adjacent lots resulting from such taking, and also the injury done to the mill property by being deprived of the use of the Pine Street lots in connection with their mill. This ordinarily would be the true rule of damages ; but, as we shall see in a subsequent part of this opinion, it required qualification on account of the burden already imposed upon the lots by the existence of a public street.

Under the second claim or head, we think the plaintiffs were entitled to recover such damages as they had sustained as riparian owners in consequence of the interruption or breakage of their river front by the erection of the railway bridge. It appears that in consequence of the erection of this bridge over Fox River, lot O in block D is completely separated on the river from lots 9 and 10 in -block 0. The plaintiffs had been accustomed, in the transaction of theiij lumbering business, to hitch logs, put in rafts, and ship lumber, in front of these lots; and evidence was offered which tended to prove that the bridge and embankment would materially interfere with the use of the river front for these purposes. - And the plaintiffs claimed that these riparian rights were property, and that they were entitled to- compensation for being deprived of them by the company. ■ The circuit court in effect charged in favor of this claim, by directing the jury that the use of the river front by the plaintiffs was a proper subject to be considered by them in estimating the damages. Was this a correct view of the law applicable to the facts of -the case ? We have already intimated that in our opinion it was. It is true, the cases upon this question are in conflict; but we adopt that rule which seems - most in harmony with the principles of justice and equity.

Fox River, where the railway bridge is built, is a navigable stream, and the bridge was created under a charter which authorized the structure. And it is said that the plaintiffs had no property in the river front, which the legislature could not destroy without making compensation therefor. The plaintiffs, it is said, own the fee in the soil only to ordinary high water mark, and beyond this line they had no private right or property in the waters of the river, or in the shore between high and low water mark, which entitled them to recover damages, even if their river frontage is cut off or destroyed. There are authorities which support this position. Gould v. The Hudson R’y, 6 N. Y., 522 ; Tomlin v. The Dubuque, Bellevue and Miss. R'y, 32 Iowa, 106. But it seems to us that the doctrine of these cases is unsound. We prefer the rule laid down by Mr. Justice McLean in Bowman's Devisees v. Wathen, where, speaking of riparian rights on navigable streams, he says: “ On navigable stream^, the riparian right, we suppose, cannot extend beyond high water mark. For certain purposes, such as the erection of wharfs, and other structures, for the convenience of commerce, and which do not obstruct the navigation of the river, it may be exercised beyond this limit. But in the present case this inquiry is not important. It is enough to know that the riparian right on the Ohio river extends to the water, and that no supervening right over any part of this -space can be exercised or maintained without the consent of the proprietor. He has the right of fishing, of ferry, and every other right which is properly appurtenant to the soil. And he holds every one of these rights by as saci’ed a tenure as he holds the land from which they emanate. The state cannot, either directly or indirectly, divest him of any one of those rights, except by a constitutional exercise of the power to appropriate private property to public purposes. And any act of the state, short of such an appropriation, which attempts to transfer any of these rights to another, without the consent of the proprietor, is inoperative and void.” 2 McLean’s R., 376-382. In the case of Duke of Buccleuch v. The Metropolitan Board of Works, Law Reports, 5 House of Lords, 418 (same case in 2 Moak’s Eng. R., 448), substantially the same view was taken of the rights of a riparian proprietor — that such rights were valuable, and that a party deprived of them was entitled to recover damages for their loss. It seems to us that it is unreasonable to deprive the plaintiffs of the business facilities which the river front affords for shipping lumber, and landing logs and boats, without compensating them for the loss of such advantages. Such riparian rights frequently constitute the chief value of river property, and to deprive an owner of them without compensation is to despoil him of most valuable property. We therefore think the plaintiffs were entitled to be compensated for the loss they sustained by the destruction or breakage of their river frontage by the erection of the railway bridge and embankment. See Arimond v. The Green Bay & Miss. Canal Co., 31 Wis., 316 ; and Railroad Company v. Schurmeir, 7 Wallace, 272. The fact that the city of Oshkosh had the right under its charter to build a highway bridge from the point where Pine street struck the river on one side to a point where a street came to the river on the other side, does not affect these riparian rights or the plaintiffs’ claim for compensation for their destruction.

In regard to the third head of damages, we think the instructions of the defendant upon that point should have been given. The difference between the actual value of the strip taken for the use of the company without such easement, and as it was burdened with the easement, did not furnish the correct rule. The plaintiffs owned the fee of these lots to the center of the street, subject to the public easement. Why should they be paid the entire value of this strip as though no such burden were already imposed upon it? The jury should have estimated their damages in view of the fact that Pine Street was a public street, and that the plaintiffs, before its condemnation by the company, had no right to the exclusive use and occupation of the same for a lumber yard. The plaintiffs had the right, like the public, to use Pine Street for the purposes of a highway, but had no right to use any part of it for a lumber or wood yard, to the exclusion of public travel. See Hegar v. The Chicago & Northwestern R'y, 26 Wis., 624; Hobart v. The Milwaukee City R'y, 27 id., 194. The jury may have assessed the plaintiffs’ damages on the basis that they had the right to use the strip taken for storing wood and lumber upon, ■whereas it is clear that they had no such right. All the damages they were entitled to recover was for the additional burden imposed upon this strip, and any special injuries they might sustain by reason of the embankment, which rendered access to their adjoining lots less safe and convenient. It is true, the court, in its general charge, told the jury that they might take into account the fact that the strip actually taken was encumbered by the easement as a street: but this did not cure the error in refusing to give the fourth, fifth, sixth and seventh requests on that subject.

The court directed the jury to deduct from the damages which they might allow for injuries to the contiguous lots, any special benefits which they might -find those lots received from the construction of the road. Some criticism is made on this portion of the charge, but it seems to us that it -is substantially correct. Such benefits as were peculiar to the property of the plaintiffs were to be set off against consequential injuries arising from the construction of the road. The court directed the jury that the plaintiffs were not entitled to compensation for any remote or possible injuries which might result from the building of the roadway, but only such as would result from the construction of the road in a suitable manner with proper crossings.

We do not think there is anything in the other exceptions requiring any special comment. A number of the instructions asked on the part of the defendant were correct as propositions of law ; but the court so clearly and fully embraced them in the general charge, that a refusal to give them again, could work no injury. But the refusal to give those in regard to the proper basis for assessing damages for laying the railway track in Pine Street, and the right of the plaintiffs to occupy and use that street to the exclusion of public travel, might have seriously prejudiced the defendant. And it is for the error in not giving the instructions upon that subject, that there must be a new trial.

By the Court — The judgment of the circuit court is reversed, and a new trial awarded.