Weekly Chillicothe crisis. (Chillicothe, Livingston Co., Mo.) 1878-19??, 1882-11-02

mas SONIC obvious UcuTlHRS VI lllu'il
general interest. In brief, the ruling is
that when property owner has an
easement In u street adjoining his
estate, the legislature has no authority
to give n corporation permanent Occu-
pancy of any part of it, whether the
roadway, the sidewalks or the light and
air-space overhead, without compen-
sating him for the damage, If any,
done to his property. This doctrine
follows the wcll-established principle
that an easement is property, and
amounts to this, that an easement in u
street extends to the whole of the space
included within the planes of its side
lines, and not merely TO the ground
surface.
The action in hand was brought five
years ago by Mr.. Story as the owner Of
two lots on Front street, holding under
titles given by the city in l773. The
deeds required u street TO be constructed
by the grantee, and covcnanted that it
should forever be kept open for the
public use, ''in such manner us the
other streets of the same city now are,
or lawfully ought to be-" The plaintiff
claimed under this title TO own the fee
of half of the street in front of his lots;
but if that claim should not be sus-
tanned, to own, at all events, IN inter-
est in it. The company made answer
that the fee of the Street remained
in the grantor, the city, and this answer
was sustained by the court Of common
pleas, which held further that the
plaintiff, having no freehold interest in
the street, was not entitled to cOmpen-
satiOn on account Of its appropriation
to public use by the railway. The
court of appeals, reversing the latter
part of this decision, holds that whether
the fee is in one party or the other is Of
no practical importance, inaSmuch as
in either event the plaintin' has pri-
vatc easement of right, of way,
coupled with an express covenant
that the entire space marked on the
map as Front street shall forever be
kept as a public street
Regarding 1t as established, there
fore, that the plaintiff had right to
have the street kept as public street,
the question arose whether the legiSa-
turc had power to give away room for
the columns which supportthe elevated
tracks, and the space above the streets
occupied by the tracks, without refer
cncc to the right of Mr.. Story
to continue to enjoy the natural light
and air which the street afforded
his estate? The street was to be as
other streets were or ought TO be.
The court saws: at was to be an open
strcet-one which would furnish light
and air to the abutting property,
and free and unobstructcd passage to
the inhabitants Of the city, The
question then was: Gould the lcgis
lature grant leave to Il railroad COM
pany to take possession of the street
and appropriate it TO uses destructive
of its continued use rs an open public
street," For it is clear that "if n SUI
perstructurc may be authorized which
spans the calriagc-way at fifteen feet
above the street, one may he author
lied which spans the entire street from
building to building, thus excluding
light and air from the street and from
the property abutting thereon"
Upon this point the conclusion is
reached that the authority which the
legislature sought to give the road was
an appropriation of the street "tO
use essentially inconsistent with that
of public street." and in violation of
Il covenant made with Story's predc-
ccssors in ownership. so that the plain
tiffs property was taken for public use
without compensation, and the COM
pany is in unlawful possession. That
the street had been "takcn,' and the
plaintiffs easement with it, hardly
needed argument.
The issue is thus reduced to one of
damages. The highest court of the
state holds that Mr., Story's property
was unlawfully appropriated by the
road, and tells him that he has righr
to get out IN injunction to restrain IFS
continuance. He is, however, scnsi-
bly, advised TO give the corporation a
chance to agree with him on price,
or secure the property by cOndcmning
it, with compensation. under the right
of eminent domain which has been
granted it. This opinion will natural
" be followed by u flood Of damage
suits, unless the roads begin at once TO
settle with abutters. The Manhattan
company has an indemnity contract
with the New York and the Mctropol-
itan, and the New York with the city,
so that whatever the New York COM
pany has now TO pay to abuttors will
come out of the taxpayers. The Me
tropolitan company is uncovered"
and liable to be mulcted in heavy sums.
When the abutter has no legal interest
in the street he appears, under the de-
cisiOn, to have no recourse; but, in
most eases, the city has only quail
fed title to the streets The importance
of this verdict can hardly be overesti-
mattel. 1t will have great restraining
influence on projects for building cle-
waited roads in other cities.