Jackson v. Kiel

13 Colo. 378

• Court: Supreme Court of Colorado
• Decided: September 15, 1889
• Status: Published

Opinion

Chief Justice Helm

delivered the opinion of the court.

We shall decline to follow counsel into a discussion of the question whether plaintiff has, and has sufficiently pleaded, a right to recover for injuries to his property occasioned by the construction and operation of the railway mentioned through the intersection of Tenth and Wyncoop streets. The complaint is not artificially worded, but it appears to have been framed upon the theory of an unlawful obstruction or abatable public nuisance, whereby plaintiff suffered a special and peculiar private injury; and we think enough facts are averred in support of this cause of action to justify the court in overruling the general demurrer interposed by defendant.

Both the pleading and evidence show clearly that the ingress and egress to and from plaintiff’s property by vehicles was had solely by meaus of the intersection of Wyncoop street with Tenth — the street upon which his lot fronts. In no different way, circuitous or otherwise, could his premises be thus reached. The right to a free use of this space of street intersection for purposes of ingress and egress was therefore as closely identified with his lot, and interference therewith was as peculiar and personal an injury, as if the obstruction had prevented access from his lot to the street immediately adjacent thereto. A complete blockade of Tenth street at this point would produce damage to his property hardly less direct and serious than would the vacation and closing up of this street in front of his lot.

It appears beyond question that defendant kept a large number of railway cars on Wyncoop street, across the space of its intersection with Tenth; that during the entire period covered by the complaint the obstruction thus created rendered it absolutely impossible for vehicles of any kind to reach plaintiff’s premises. The completeness of the obstruction is clearly shown by the testimony of defendant’s own witness, the general yard-master of the railway company, who says, among other things: “We have never kept Tenth open, or recognized it as a street.” It also, in like manner, appears that, in consequence of this obstruction, plaintiff was seriously damaged by the depreciation of the rents received for his premises.

Tenth street was a public highway; and an unauthorized obstruction thereof, especially if long continued, would constitute a public nuisance. If we assume that the right of way along Wyncoop street at this point was lawfully obtained, in the first instance, for the purpose of constructing and operating the railway, such right did not authorize the complete blockade of the crossing. Defendant could not absolutely destroy, for a considerable period, the usefulness of this part of Tenth street for the usual street purposes under any license, or authority appearing in the record before us. He was bound to so use the right of way obtained as not to permanently prevent the passage of vehicles, and the employment of the' street in other ordinary uses. Plaintiff, of course, could not recover for any general inconvenience thus occasioned which he may have suffered in common with the general public; but for the special and peculiar injury shown in this case he was doubtless entitled to-compensation.

Appellant has no cause to complain of the measure of damages recognized in the charge to the jury. The difference in rental value occasioned by the nuisance or obstruction is the rule usually adopted in such cases; though, under proper circumstances, the recovery may take a wider scope. The right to recover, if established, includes “the depreciation of rental value, by the difference, in other words, between the rental value free from the effects of the nuisance and subject to it.” 3 Suth. Dam. 414, and cases.

The ruling of the court below, from which the first appeal was prosecuted, and its final judgment, from which the second appeal was taken, are both affirmed.

Affirmed.