
    Chicago, Burlington & Quincy Railroad Company v. M. C. Steel, Receiver of Beatrice Rapid Transit & Power Company.
    Filed April 7, 1896.
    No. 6355.
    1. Railroad Companies: Easements: Street Crossings. An ordinance authorizing the crossing of the .streets of a city hy the tracks of a railroad company confers upon the corporation therein.named no exclusive use of such crossing, but a use to he enjoyed in common with the general public.
    2. -: -: Street Railways: Damages. A railroad ■company which has by ordinance acquired a permanent easement in the streets of a city, is not entitled to compensation from a street railway company as a condition to the crossing of its tracks by the latter under a grant of power from the city.
    8.-: -. Calvert v. State, 34 Neb., 616, distinguished.
    Error from the district court of Gage county. Tried below before Babcooic, J.
    
      John H. Ames, A. Haislett, and J. W. Deweese,- for plaintiff in error:
    The defendant should be required to compensate plaintiff for damages as a. condition precedent to constructing and using a crossing over the latter’s right of way. {Nichols v. Arm Arbor & 7. St. R. Go., 87 Mich., 361; Ford v. Santa Orm R. Go., 59 Cal., 290; McQuaid v. Portland & Y. R. Go., 18 Ore., 237; Sixth Avenue R. Go. v. Kerr, 72 N. Y., 330; Fidelity Trust & Safety Yault Go. v. Mobile St. R. Go., 53 Fed. Rep., 687; In re. Rochester Water Commissioners, 66 N. Y., 413; People, v. Dutchess & O. R. Go., 58 N. Y., 152; People v. Chicago & A. R. Co., 67 111., 118; In re Trenton'Wdter Power'Go., 20 N. J. Law, 659; People v. Troy & B. R. Go., 37 How. Pr. [N. Y.], 427; State v. Northern R. Go., 9 Rich. [S. Oar:], 247; State v. Minneapolis & St. L. R. Go., 39 Minn., 219; Chicago & N. W. R. Go. v. GMcago & P. R. Go.,. 6 Biss. [U. S.], 219; Little Miami & (7, & X. R. Go. v. City of Dayton, 23 0. St., 510; In re City of Búfalo, 68 N. Y., 167; Milwaukee & St. P. R. Go. v.: Gity of Faribault, 23 Minn., 167; Railroad Gompang’s Appeal, 93 Pa. St., 150, 122 Pa. St., 511; Pennsylvania R. Go. v. Braddock Electric R. Go., 25 Atl. Rep. [Pa.], 780; Grand Rapids N. & L. S. R. Go. v. Gh-and Rapids & I. R. Go., 35 Mich., 265; Toledo, A. A. & N. M. R. Go. v. Detroit, L. & N. R. Go., 62 Mich., 564; Flint & P. M. R. Go. v. Detroit & B. O. R. Go., 64 Mich., 350; People v. Lake Shore é M. S, R. Go., 52 Mich., 277; St. Paul, M. & M. R. Go. v. Gity of Minneapolis, 35 Minn., 141.)
    
      J. E. Gobbey, contra.
    
    . References: GMcago, B. & Q. R. Go. v. Gity of Qumcy, 28 N. E. Rep. [111.], 1069; Highland Avenue & B. R. Go. v. Birmingham U. R. Go., 9 So. Rep. [Ala.], 569; Búfalo, R. & P. R. Go. v. Du Bois T. P. R. Go., 24 Atl. Rep. [Pa.], 181; GMcago, B. & Q. R. Go. v. West GMcago St. R. Co., 40 N. E. Rep. [111.], 1008; Kansas Gity, St. J. A G. B. R. Go. v. St. Joseph T. R. Go., 3 L. R. A. [Mo.], 240; Omaha Horse R. Go. v. Gable Tramioay Go., 30 Fed. Rep., 331; Oioensborough & W. R. Go. v. Stitton, 13 S. W. Rep. [Ky.], 1086; Houston & T. G. R. Go. v. Garson, 1 S. W. Rep. [Tex.], 107; Dubach v. Hannibal é St. J. R. Go., 1 S. W. Rep. [Mo.], 86.
   Post, O. J.

A question distinctly presented by this record is whether a steam railroad company, which has by ordinance acquired a permanent easement in the streets of a city, is entitled to compensation from a street railway company as a condition to the crossing of its tracks by the latter under a grant of power from the city. Adjudications directly in point are by no means numerous, although the question appears, whenever presented for determination, to have been resolved in the negative as an independent proposition, unaffected by the inquiry whether street car tracks are, or are not, an additional burden upon adjoining private property.

In New York, N. H. & H. R. Co. v. Bridgeport Traction Co., 32 Atl. Rep. [Conn.], 953, the identical question was presented upon the application of the plaintiff for an injunction to restrain the threatened crossing by the defendant of its tracks in the city of Bridgeport. In the opinion of the court reversing the decree below for the plaintiff, this language is used: “It is further insisted that these special grants, if otherwise effectual, give the defendant no right to construct the crossing without first making compensation for the direct damage it will do to the plaintiff’s property. The injunction was asked to prevent a threatened obstruction of the plaintiff’s right of way. It is not alleged or found that it owns the fee of the highway. It has only a right to cross it at grade. The defendant’s tracks are laid upon the highway by the authority of the state and as a highway for public travel. We are not called upon to consider whether electric cars impose any additional burden upon land occupied for a highway for which the owner of such land can claim compensation. The plaintiff is not in a position to raise that question. It claims that the proposed crossing at Fairfield avenue will affect the safe and beneficial use of its right of way at that point, and thereby impair the general value of its franchises and property. But it holds these subject to the police power of the state, under which the use of highways for all purposes of public travel is fully within the control of the legislature.” .

The supreme court of Indiana, in Chicago & C. T. R. Co. v. Whiting, H. & E. C. St. R. Co., 139 Ind., 297, affirmed, a decree of the circuit court restraining the defendant below — a ste.am railroad company — from interfering with the construction of the plaintiff’s street car line across its tracks in the city of Hammond. Referring to the question of compensation it is there said: “Appellant contends that this will be a burden and a hindrance to the free and unobstructed úse of the appellant’s steam railway, which it is claimed is a taking of private property without just compensation, in violation of the constitution. True, it is a hindrance and an obstruction to the use of appellant’s steam railway. But having obtained its right of way subject to the burden of the easement in the public generally, and the street railway being entitled to the use of that easement, all the rights appellant obtained in the street for its steam railway were subject to the right of the street railway to use the street. In short, the appellant’s rights obtained in the use of the streets for its steam railway were subject to the burden of the appellee’s use thereof, in the ordinary and proper manner, for its street railway. The complaint shows that appellee was only proposing to use the streets at the crossings, in the ordinary and in a proper manner, for the construction of street railway crossings, and that it had been hindered and obstructed therein by the appellant by the use of force. It would therefore not be a taking of private property without just compensation, because it does not propose to take from appellant anything it ever owned. It never owned its right of way over and across the streets named free from the burden of the public easement, a part of which belongs to the appellee, the street railway.”

In Du Bois T. P. R. Co. v. Buffalo R. & P. R. Co., 149 Pa. St., 1, the supreme court approve of an opinion by the common pleas judge, from which we quote the following: “There is therefore no such injury or damage done to the respondent’s rights as are the subject of compensation in damages. The crossing of its track by the passenger railway company gives no greater right to damages, in the view we take of the case, than it would have if the claim w.as made against an omnibus line.”

The samé question was carefully considered by the supreme court of Illinois in Chicago, B. & Q. R. Co. v. West Chicago S. R. Co., 156 Ill., 255, in which it is held that an ordinance of the city of Chicago authorizing the plaintiff to lay and operate its tracks across certain streets did not confer upon it an exclusive use of such crossings, but a use thereof to be enjoyed in common with the public; also that a railroad company which has acquired a permanent easement in the streets crossed by its tracks is not entitled to compensation for the crossing of such tracks by a street railway company under permission from the city, such easement being subordinate to the rights of the public, and the use of street cars being a legitimate exercise of the public right is in no sense a violation thereof.

There are to be found many cases which rest upon the same principle as the foregoing, and in harmony therewith, but involving controversies between railroad companies or between street railway companies claiming superior easements in public streets. (See Kansas City, St. J. & C. B. R. Co. v. St. Joseph T. R. Co., 97 Mo., 457; Highland Avenue & B. R. Co. v. Birmingham U. R. Co., 9 So. Rep. [Ala.], 568; Market Street R. Co. v. Central R. Co., 51 Cal., 583; Omaha Horse R. Co. v. Cable Tramway Co., 32 Fed. Rep., 729.)

Calvert v. State, 34 Neb., 616, cited as opposed to the conclusion announced, is not in point, as that case turned upon an entirely different question. True the subject here involved was there suggested, although incidentally, as shown by the following language of Maxwell, O. J., on page 632: “Whether the right exists to construct such a track across the network of railway tracks where trains are being constantly made up, we do not decide, because the question is not presented.”

The doctrine of the cases cited, and which to us appears altogether reasonable and sound, is that a railroad company acquires no exclusive use of streets crossed by its tracks with the consent of the city or other municipal body, but must enjoy the right so conferred in common with the general public; that it is presumed to have contemplated the adoption of such improved means of travel as the exigencies of the case require in order to best subserve the public interests and necessities; and that any mere inconveniénce suffered by it on account of the crossing of its lines by tbe tracks of street railways by permission of the proper authorities is damnum absque injuria.

There are other questions presented by the record and other sufficient reasons for affirming the decree of the district court, but which, in view of the conclusion above stated, need not be noticed.

Affirmed.  