
    HESTER v. TRACTION CO.
    (Filed May 2, 1905.)
    
      Street Railways — Additional Servitude — Municipal Corporations — Streets—Sidewalks—Abutting Proprietor.
    
    1. The construction of a street passenger railway does not impose any additional servitude upon the property fronting on the street so occupied.
    2. The rights, powers and liability of a municipality extend equally to the sidewalk as to the roadway, for both are parts of tire street and the abutting proprietor has no more right in the sidewalk than in the roadway.
    3. The rights of an abutting proprietor are simply that the street (including roadway and sidewalk) shall not be closed or obstructed so as to impair ingress or egress to Ms lot by himself and those whom he invites there for trade or other purposes.
    4. Plaintiff owns a lot which occupies the apex of the acute angle at the intersection of two streets, on which street ear tracks are laid, and under permission of the City the defendant laid a curved track- around said angle. The curve does not touch the sidewalk, but the edge of the passing car for a few inches of distance slightly overhangs the edge of the sidewalk, and the ends of cross ties are embedded under the sidewalk, held, that the acts complained of were not unlawful, as plaintiff’s right of ingress and egress to his lot was not interfered with by the curve.
    Ac'tioN by W. D. ITester against Durham Traction Company heard by Judge Henry R. Bryan and a jury at the October Term, 1904, of the Superior Court of Dukhak County. Erom a judgment in favor of the defendant, the plaintiff appealed.
    
      Winston & Bryant and Fuller & Fuller for the plaintiff.
    
      Manning & Foushee for the defendant.
   Clark, C. J.

Tbe plaintiff owns tbe lot wbicb occupies tbe apex of the acute angle wbicb lies at tbe junction of Main and Cliapel TIill Streets in tbe city of Durham. Tbe defendant by permission of tbe Board of Aldermen of tbe city laid a curved track to pass from one street to tbe other, as per below diagram:

This track was located and laid under tbe direction of the street commissioner who made bis report to the Board of Aldermen, tbe expenses of the work being borne by tbe defendant. This curved track was used in tbe summer in tbe evenings from 6:30 until the cars went to tbe barn for tbe night about 11 or 11:30. The curve was laid for tbe convenience of the public in going from West Durham to tbe Park and returning. Prior to its being laid, tbe passengers had to be transferred at that point (known as “Pive Points”) or else the West Durham car bad to go down Main street, and, reversing fenders, seats and trolley, run back up Chapel TIill street. To avoid this great inconvenience to the public, tbe Board of Aldermen authorized this curve to be put in to run round tbe sharp angle at the junction of the two streets. Only passenger cars are used, no freight cars. On Main Street, the nearest rail of the track is 15% feet from the outside edge of the sidewalk, and it is 13% feet on Ohapel Hill Street from the nearest rail to curb. The curved track in rounding the point does not touch the sidewalk, but at the south east corner as the curve enters Ohapel ITill Street, the edge of the car for a few Inches of distance is slightly over the edge of the sidewalk. The complaint avers that the rear of the car does this, but this is evidently a mistake, for as the concave side of the curve is towards the plaintiff’s lot, the rear of the car necessarily swings outward, not in. It is also in evidence that at the south east corner of the sidewalk the cross-ties extending 18 inches further than the rail have their extreme ends under the sidewalk. They are not above the surface but under, and as the cross-ties thus embedded, out of sight, cannot impede the use of the sidewalk, which is the property of the city, the plaintiff can have no possible ground of action on that account. The sidewalk on Main Street is ten feet wide and that on Ohapel Hill Street is eight feet. The south east corner where the passing car “overhangs” is diagonally distant about 11 feet from the south east corner of the plaintiff’s lot.-

The plaintiff’s cause of action depends upon whether he is injured in the use of his property by the slight overhanging of the pavement by the car for an instant of time as it passes the .south east corner where the curve enters (or leaves) Ohapel Hill Street. The charter of the city of Durham shows that, as usual, the city has the same right and title to the sidewalks as to the rest of its streets. The defendant’s track was laid under authority of its charter “permission being first had” of the city as required. The construction of a street passenger railway- “does not impose any additional servitude upon the property fronting on the street so occupied.” Merrick v. Railway, 118 N. C., 1081, citing Railroad v. Montgomery, 167 Pa. St. 70, 27 L. R. A. 766; Kennelly v. Jersey City, 26 L. R. A. 281; Elliott R. & S. 558; Cooley Const. Lim. 683; Dillon Mun. Corp. (4 Ed.) Sec.. 723. To the same purport, Railroad v. Street Railway, 120 N. C., 523; Smith v. Goldsboro, 121 N. C., 350; Tel. Co. v. Railroad, 93 Tenn., 492, 27 L. R. A. 239; Railroad v. Higbee, (Wis.) 51 L. R. A. 923; Booth St. Railways, Sec. 83; Joyce on Elec. Sections 336, 339, 341; 27 Am. & Eng. Enc. (2nd. Ed.) 27-29.

The authorities with singular uniformity concur that it is “now well settled that the use of the streets in cities or villages for a street railway is one of the ordinary purposes for which such streets and highways may be used and does not impose an additional burden or servitude so as to entitle the abutting property owner as a matter of right to compensation before such use can be made. * * * This rule is generally recognized irrespective of the question whether, in the original laying out of the street, a mere easement was taken, leaving the fee simple in the abutting property.” The rights, powers and liability of the municipality extend equally to the sidewalk as to the roadway, for both are parts of the street. Tate v. Greensboro, 114 N. C., 392; 2 Smith Mun. Corp. Sec. 1304; Elliott, Supra, Sec. 20. This is recognized by The Code Section 3803 and by the courts which hold towns and cities to the same degree of liability for failure to repair sidewalks as to repair the other part of the street. Bunch v. Edenton, 90 N. C., 431; Russell v. Monroe, 116 N. C., 726; Neal v. Marion, 129 N. C., 345; Wolfe v. Pearson, 114 N. C., 621; 2 Dillon, supra, Sec. 780, note 1, Sections 1008 and 1012.

In Bunch v. Edenton, supra, “It was’ the positive duty of the corporate authorities of the town to keep the streets, including the sidewalks, in proper repair.” The charter of Durham gives the same powers over sidewalks and imposes the same liabilities upon the- city for failure to repair the sidewalks, as in regard to the other part of the street. In Railroad v. Higbee, 51 L. R. A. 929 it is said: “There is no limit to the public right to use a street, and every part of it, so long as that use is in aid of public travel thereon and does not unnecessarily interfere with the common nse of the way by ordinary inodes of travel, and is no substantial impairment of private rights of property.”

The complaint avers three grounds of damage:

1. That two inches of the plaintiff’s lot is covered by the defendant’s track. But the evidence shows that the rail at the nearest point of the curve is three inches outside the curbing to the sidewalk and the pleadings admit that no part of the plaintiff’s lot (inside the sidewalk) is overhung- by the car in passing.

2. That vehicles have almost no approach to the lot. But the evidence is that between the outer edge of the sidewalk and the defendant’s nearest rail there is 15% feet on Main Street and 13% feet on Chapel Hill Street. It is only at the apex, at the toe of the boot so to speak, that the track approximates the outer edge of the sidewalk. There is ample evidence that the curve does not interfere with carriages standing on either street in front of the plaintiff’s lot. As the “toe” of the plaintiff’s lot is only I feet 1 inches, and being an acute angle it would be barely 4 feet perhaps at the edge of the sidewalk, a carriage could not stand there. The “toe” of the sidewalk (the cross sidewalk) is 22 feet 5% inches, but over 18 feet of this is “frontage” not of the plaintiff’s lot, but caused by continuation of the two sidewalks, for if the plaintiff’s lot were extended to the eastern edge of the sidewalk at that place, it would be narrowed, as already said, to a point with almost no front at all.

3. .That cars frequently run off the track at that point. The only evidence is that they did run off the track three or four times when the curve was first used. There is no evidence of any inj'ury to the plaintiff from this cause.

The sidewalk is simply a part of the street which the town authorities have set apart for the use of pedestrians. 27 Am. & Eng. Enc. (2 Ed.) 103; Ottawa v. Spencer, 40 Ill., 217; Chicago v. O’Brien, 53 Am. Rep. 640. The abutting proprietor has no more right in the sidewalk than in the roadway. His rights are simply that the street (including roadway and sidewalk) shall not be closed or obstructed so as to impair ingress or egress to his lot by himself and those Avhom he invites there for trade or other purposes. Moose v. Carson 104 N. C., 431; White v. Railroad, 113 N. C., 610. As said in State v. Higgs, 126 N. C., 1014: “An abutting owner to a street and sidewalk has an easement in his frontage which he may use in subordination to the superior rights of the public.” Sidewalks are of modern origin. Anciently they were unknown as they still are in eastern countries and in perhaps a majority of the towns and villages of Europe. In the absence - of a statute a town is not required to construct a sidewalk. Atty. Gen'l. v. Boston, 142 Mass., 200. It is for the town to prescribe the width of the sidewalk. In the absence of statutory restriction it may widen, narrow or even remove a sidewalk already established. Attorney General v. Boston, supra. To widen a sidewalk narrows the roadway. To widen the roadway narrows the sidewalk. The proportion of the street to be preserved for pedestrains and vehicles respectively is in the sound discretion of the town authorities. Here, they might narrow the sidewalk at the “toe” of the plaintiff’s lot by drawing in its outer edge, or they might make the outer edge curving to correspond with the curve of the car track and thus prevent the car overhanging the edge of the sidewalk. If so, they may, so far as the plaintiff' is concerned, let the car overhang the corner instead of cutting off that corner from- the sidewalk. If the sidewalk were so far narrowed as to impede the circulation of passers by on foot so as to hinder the ingress and egress to the plaintiff’s building, he would bave cause of complaint, but sucb is not tbe case bere. If tbe overbanging of tbe car were to injure any one walking on tbe' sidewalk, sucb person might possibly bave a cause of action against tbe city or tbe defendant, for tbe establishment and maintenance of tbe sidewalk are an invitation to pedestrians to walk anywhere thereon, but tbe plaintiff would not be injured thereby in bis property rights to tbe lot, which is,this cause of action. As to pedestrians tbe city can protect itself by reducing tbe width of tbe sidewalk at that point, or by condemning a few inches of tbe plaintiff’s lot it could make a cut off at tbe outer corner without reducing tbe width of tbe sidewalk, but it should be remembered that that small space, occasionally overhung by a passing car, is at a corner of tbe street, and therefore tbe sidewalk, measured diagonally, is wider tliere than elsewhere, and would still be wider, though tbe little space “overhung” were- cut off from tbe sidewalk, or ■ tbe outer curbing of tbe sidewalk were drawn in and made curving at that point.

In bolding that tbe acts of tbe defendant complained of by tbe plaintiff were not unlawful and did not constitute a cause of action, there was

No Error.  