Judge Duvall
delivered the opinion of the court:
The Lexington and Ohio Railroad company was incorporated by an act of the legislature, approved January 27, 1830; by the provisions of the 14th section of which they were authorized to construct a railroad from Lexington to some point on the Ohio river.
In May, 1832, the board of trustees of the town of Frankfort, at the instance of the railroad company, passed an ordinance granting to the latter, the right “to locate their road through any of the streets and alleys of the town, to the full extent that may be neessary to construct said road, and the same, when located by said company for the purposes aforesaid, shall forever be and remain in perpetuity to the said president and managers, and their successors in office, without any tax, charge, duty, let or hindrance upon the part of the trustees or their successors in office.”
It may be proper to remark here, that by the several acts concerning the town of Frankfort the legal title of all the streets and alleys, was vested originally in the trustees of the town, and since it has been declared a city, the title is in the board of councilmen.
Under the authority conferred by the ordinance referred to, the railroad company selected Broadway as the street through which they would construct the road. But the company subsequently failed, and such portions of the road as had been completed, were sold, the state becoming the purchaser at the price of $150,000.
In 1847, (he legislature passed an act creating a new company, styled the “Louisville and Frankfort Railroad company” authorized, by the 38th section of the act, to construct a railroad from St. Clair street in Frankfort to some point on the Ohio river. This company succeeded to, and became invested with all the rights of way, and other privileges and franchises belonging to the late Lexington and Ohio [773]*773Railroad company. (9 B. Mon. 470.) And it appears from the exhibits made part of the record, that under an agreement made by the company with the board of councilmen of the city of Frankfort, the former made certain improvements on Broadway street, between Washington and Wilkinson streets, in front of the lot of the plaintiffs, which were rendered necessary by the construction of the railroad, and for which the company paid, at various times, various sums, amounting in all to $7,263 82.
In March 1853, the appellees brought an action against the appellants, alledging in their petition that they were the owners of a lot of ground on Broadway street in Frankfort, on which a dwelling house and other improvements had been built and made for more than twenty years; that the appellants had caused to be constructed along the centre of said street, in front of plaintiffs’ lot, a wall or structure about twelve feet in width, and four feet high at the western end of the lot: that the erection of the wall had greatly injured their lot and buildings and impaired their value; that it had deprived them of the use of a great portion of the street, and greatly interfered with the use and enjoyment of the remainder; that the wall had entirely obstructed the crossing of said street in front of their lot, and hindered the plaintiffs in the lawful use of the same, and therefore pray judgment for two thousand dollars in damages.
The defendants demurred to the petition upon various grounds, and the demurrer was overruled as to all except the 6th assignment, which set forth a defect of parties. The petition was amended by the proper parties being made; and the defendants then answered, denying the right of the plaintiffs’ to maintain their action, asserting their authority and right to construct their railroad through Broadway street, and to make such walls as were necessary, under various acts of the legislature, and ordinances of the trustees and board of councilmen of Frankfort. [774]*774They deny that any injury or damage has resulted to the plaintiffs or others, from the construction of the railroad or wall, or that the plaintiffs have to any injurious extent, been deprived of the use of their lot and buildings.
The case was submitted to a jury who found a verdict in favor of the plaintiff for $240. Upon the motion of the defendants for a new trial, the verdict and judgment were set aside, and a new trial granted at the November term 1854. Afterwards, in November 1855, the plaintiffs brought another action for the recovery of such damages as had accrued since the institution of their first suit, and by agreement, the two causes were consolidated, and were submitted to the court for judgment upon the facts agreed by the parties.
The agreed facts are substantially as follows:
That the plaintiffs were the owners of the lot described in the petition, one year prior to the instutition of their action, holding the same under Mrs. Hannah Price, who, before she completed her purchase of the lot, had notice that the trustees of Frankfort had granted the right of vtay for the building of a railroad along Broadway street; that this street is ninety feet wide, and the side-walks on either side are about ten feet wide; that the wall erected by the railroad company on which the rails are laid, occupies about twelve feet of the center of the street, and renders the crossing of the same by vehicles and horses, in front of said lot, impracticable; that the wall is not of greater height than was necessary for the construction of the railroad along the street, so as to cross the river; that the street has been, ever since the erection of the wall, well graded on either side, and that vehicles can pass and re-pass on either side without inconvenience.
The court rendered judgment for the plaintiffs, in the action first brought, for $125, and in the other, for $101, to reverse which the defendants prosecute this appeal.
[775]*775The appellees insist that the structure complained of is a nuisance, and an encroachment upon their right to the free atid unobstructed use and enjoyment of that portion of the street which lies in front of their property, for all lawful purposes; and the authority mainly relied on to sustain the judgments in their favor, and the principle upon which it seems to have been founded, is the case of the Lexington and Ohio Railroad vs. Applegate, &c., 8 Dana, 289.
In that case the chancellor had enjoined the company from running their cars and carriages by steam or otherwise upon their railroad along Main street in the city of Louisville, upon the ground that the railroad and the running of cars upon it, was a purpresture and a nuisance of which the owners of property fronting on that street had a right to complain, and the propriety of that decree was the only question decided by this court.
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Judge Duvall
delivered the opinion of the court:
The Lexington and Ohio Railroad company was incorporated by an act of the legislature, approved January 27, 1830; by the provisions of the 14th section of which they were authorized to construct a railroad from Lexington to some point on the Ohio river.
In May, 1832, the board of trustees of the town of Frankfort, at the instance of the railroad company, passed an ordinance granting to the latter, the right “to locate their road through any of the streets and alleys of the town, to the full extent that may be neessary to construct said road, and the same, when located by said company for the purposes aforesaid, shall forever be and remain in perpetuity to the said president and managers, and their successors in office, without any tax, charge, duty, let or hindrance upon the part of the trustees or their successors in office.”
It may be proper to remark here, that by the several acts concerning the town of Frankfort the legal title of all the streets and alleys, was vested originally in the trustees of the town, and since it has been declared a city, the title is in the board of councilmen.
Under the authority conferred by the ordinance referred to, the railroad company selected Broadway as the street through which they would construct the road. But the company subsequently failed, and such portions of the road as had been completed, were sold, the state becoming the purchaser at the price of $150,000.
In 1847, (he legislature passed an act creating a new company, styled the “Louisville and Frankfort Railroad company” authorized, by the 38th section of the act, to construct a railroad from St. Clair street in Frankfort to some point on the Ohio river. This company succeeded to, and became invested with all the rights of way, and other privileges and franchises belonging to the late Lexington and Ohio [773]*773Railroad company. (9 B. Mon. 470.) And it appears from the exhibits made part of the record, that under an agreement made by the company with the board of councilmen of the city of Frankfort, the former made certain improvements on Broadway street, between Washington and Wilkinson streets, in front of the lot of the plaintiffs, which were rendered necessary by the construction of the railroad, and for which the company paid, at various times, various sums, amounting in all to $7,263 82.
In March 1853, the appellees brought an action against the appellants, alledging in their petition that they were the owners of a lot of ground on Broadway street in Frankfort, on which a dwelling house and other improvements had been built and made for more than twenty years; that the appellants had caused to be constructed along the centre of said street, in front of plaintiffs’ lot, a wall or structure about twelve feet in width, and four feet high at the western end of the lot: that the erection of the wall had greatly injured their lot and buildings and impaired their value; that it had deprived them of the use of a great portion of the street, and greatly interfered with the use and enjoyment of the remainder; that the wall had entirely obstructed the crossing of said street in front of their lot, and hindered the plaintiffs in the lawful use of the same, and therefore pray judgment for two thousand dollars in damages.
The defendants demurred to the petition upon various grounds, and the demurrer was overruled as to all except the 6th assignment, which set forth a defect of parties. The petition was amended by the proper parties being made; and the defendants then answered, denying the right of the plaintiffs’ to maintain their action, asserting their authority and right to construct their railroad through Broadway street, and to make such walls as were necessary, under various acts of the legislature, and ordinances of the trustees and board of councilmen of Frankfort. [774]*774They deny that any injury or damage has resulted to the plaintiffs or others, from the construction of the railroad or wall, or that the plaintiffs have to any injurious extent, been deprived of the use of their lot and buildings.
The case was submitted to a jury who found a verdict in favor of the plaintiff for $240. Upon the motion of the defendants for a new trial, the verdict and judgment were set aside, and a new trial granted at the November term 1854. Afterwards, in November 1855, the plaintiffs brought another action for the recovery of such damages as had accrued since the institution of their first suit, and by agreement, the two causes were consolidated, and were submitted to the court for judgment upon the facts agreed by the parties.
The agreed facts are substantially as follows:
That the plaintiffs were the owners of the lot described in the petition, one year prior to the instutition of their action, holding the same under Mrs. Hannah Price, who, before she completed her purchase of the lot, had notice that the trustees of Frankfort had granted the right of vtay for the building of a railroad along Broadway street; that this street is ninety feet wide, and the side-walks on either side are about ten feet wide; that the wall erected by the railroad company on which the rails are laid, occupies about twelve feet of the center of the street, and renders the crossing of the same by vehicles and horses, in front of said lot, impracticable; that the wall is not of greater height than was necessary for the construction of the railroad along the street, so as to cross the river; that the street has been, ever since the erection of the wall, well graded on either side, and that vehicles can pass and re-pass on either side without inconvenience.
The court rendered judgment for the plaintiffs, in the action first brought, for $125, and in the other, for $101, to reverse which the defendants prosecute this appeal.
[775]*775The appellees insist that the structure complained of is a nuisance, and an encroachment upon their right to the free atid unobstructed use and enjoyment of that portion of the street which lies in front of their property, for all lawful purposes; and the authority mainly relied on to sustain the judgments in their favor, and the principle upon which it seems to have been founded, is the case of the Lexington and Ohio Railroad vs. Applegate, &c., 8 Dana, 289.
In that case the chancellor had enjoined the company from running their cars and carriages by steam or otherwise upon their railroad along Main street in the city of Louisville, upon the ground that the railroad and the running of cars upon it, was a purpresture and a nuisance of which the owners of property fronting on that street had a right to complain, and the propriety of that decree was the only question decided by this court. The right of the owners of lots contiguous to this street, was held to be a “private right, of the nature of an incorporeal hereditament, legally attached to their contiguous ground, an incidental title to certain facilities and franchises assured to them by contract and by law, without which their property would be comparatively of but little value, and would never have been bought by them.” But it was also held that the appropriation of a portion of the street to the uses of the railroad, was not inconsistent with this right, but was consistent with the purposes for Which the street was established, and with the just rights of all, and that therefore, such persons had no right, either to damages, or to an injunction; because they purchased their property and must hold it, subject to any consequences that may result, whether advantageously or disadvantageously, from any public and authorized use of the streets, in any mode promotive of and consistent with the purposes of establishing them as common highways in town. And the decree of the chancellor was, therefore, reversed, and the railroad, as con[776]*776structed being authorized by the municipal power, declared to be neither a purpresture or nuisance.
But the appellees insist that the distinction between that case, and the one under consideration is, that in the former, the grade of the street was not altered, or so elevated as to obstruct the passage of the public over, or across any portion of it.
In the case of Keasy vs. City of Louisville, 4 Dana, 154, this court decided that the city authorities had a right to regrade a street for any public purpose, and that the city was not responsible for the inconvenience or obstructions to which the plaintiff was thereby subjected, although his house had been built to suit the original grade, and although the regrading complained of, had raised the street several feet above the level of his lot. And it was decided that the plaintiff had no cause of action, as the city had been guilty of no trespass, or invasion of any right of property. The same principle is decided in the case of Wolfe vs. Cov. and Lex. Railroad, 15 B. Mon., 409, in which it is said that the city authorities of Covington had power “not only to authorize the introduction of the road into the city, and the use of the street for its purposes, but also to authorize the company to change the grade so as to suit the passage of this road,” &c.; and might also change the grade for the purpose of making it correspond with the grade of the railroad, if the road had stopped at the end of the street, and so far above or below it as to prevent convenient access.
The case of Chapman vs. The Albany and Schenectady Railroad Company, 10 Barbour, 360, is conclusive of the question we have been considering. In that case the supreme court of New York decide: “That a railroad corporation, constructing its road through one of the streets of a city, in pursuance of authority granted by the legislature, and with the consent of the common council of the city, is not liable for consequential damages sustained by persons owning lands adjacent to the street, by reason of the [777]*777raisings of the grade o£,the street, provided the authority given to the company is exercised with proper skill and care.
1. Purchasers of lots in cities and towns take them subject to the discreet exercise by the town authorities of all the power which the law gives them over the streets and alleys.
“That the use to which a street in a city is devoted, is far more extensive than the mere right of the public to pass over it. It may be used in any way which shall best promote the interests or business of the city or village where it is located. What will so promote this business and that interest is to be determined by the municipal authority to whom the control of the streets is committed.
“That those who purchase lands adjacent to such streets, must be deemed to take their title, subject to the appropriation of streets to such purposes and objects as the public interests shall require.
“That the only restriction upon this appropriation is. that the use to be made of the streets must not be incompatible with the ends for which they were established.” The learned judge who delivered this opinion, refers to, and quotes from, the case of the Lexington and Ohio Railroad Company vs Applegate, in support of the principles stated.
It is deemed unnecessary to notice further the numerous decisions referred to in argument on both sides. The current of authority upon this point, swelling with the accessions to which the introduction of the railroad system, upon an extended scale, has given rise in the courts of almost all the states, is unbroken. It may be assumed as true, that some portion of every railroad in the Union, runs through the street of a city, town or village, and in all the litigation which has resulted, we have met with no case recognizing a different doctrine, except where the general principle has been modified by some statutory enactment. Reason and justice, no less than judicial authority, sanction the principle. No right of property is invaded; no property of the appellees has been taken for public use, without compensation. Their right to the use of the street, even according to the most comprehensive definition of [778]*778that right, is held and must be exercised in subjection to the equally well established right of the municipal power of the town or city, to make such appropriation of the streets as, in their opinion, will best promote the interests and business of the local community. “Streets within the limits of municipal corporations,” in the language of the supreme court of New York — “are not exclusively to be devoted to the use of foot passengers and vehicles moved by animal power. This is undoubtedly their primary and principal, but by no means their only use. Sewers and drains may be constructed, water-pipes and gas-pipes may be laid in them; they maybe dug up; their grade maybe changed: and the adjacent owners subjected to various and serious inconveniences. If it was ever the rule, that streets could only be appropriated to the use of those who may have occasion to travel over them, either on foot, or by means of animal power, it is very certain that the progress of improvements, and the exigencies of society, have left such a rule far behind.”
2. The municipal authorities of the eity of Frankfort had full power to admit the Louisville and Lexington Railroad to pass through Broadway street and to permit such grading as was proper to se cure the passage of the cars thro’ that street, and no right of action for any partial injury to the owners of property on said trial accrued therefrom.
It is not pretended in this case, either that the municipal authorities of Frankfort were not invested, by the legislature, with full power to authorize the construction of this railroad through Broadway, or that there was any excessive • or injudicious exercise of such power. It is admitted that the wall or structure complained of, is not of a greater width or height, than was necessary for the construction of the railroad along the street so as to cross the, river; that the street has been, ever since the erection of the wall, well graded on either side and that vehicles can pass and repass, on either side without inconvenience.
Our conclusion, therefore, is, that the appellees, upon the case as made out by the pleadings and proof exhibited in the record, were not entitled to any judgment.
Wherefore, the judgment is reversed, and the cause remanded for a new trial, and for further proceedings in conformity with this opinion.