Evening star. [volume] (Washington, D.C.) 1854-1972, 1890-12-20

TRACKS ON THE STREET.
Points Decided in Opinion Of the Court n
General Term.
TIE LOCALITY OF THE D. AND o. TRACES AND OF
THE "r sUsrAUKD-THE LIMITATIONS on THE
USE or sraErTs By RALnoADs-DAMAeEs nAY
BE IEcov1axD FOE UNAUTHORIZED us1.
Tho opinion Of tho Court in General Term,
delivered by Mr.. Justice James this week in the
case Of yohrRC. Click agt. the Baltimore and
Ohio Railroad Company, discussed and decided
| some interesting points respecting the occupa-
ton and use Of streets by railroads. The action
was brought for injuries to the plaintiffs real
estate on LIST street and on K street by the oper-
ations Of the railroad. 1t was alleged that the
| company unlawfully used and occupied LIST
| street, particularly between I and K streets,
'for the general purposes of freight yard and
depot and also parking cars and trains" and
| also passed plaintiffs premises on LIST street at
an unauthorized and unnecessary rate Of speed.
1t was alleged also that the track on LIST street
and along street, commonly known as the
~, was built by the company without any
right or authority whatsoever, and that its use
and maintenance in front of plaintiff premises
and empty cars thereon was unlawful and had
injured the enjoyment and value Of plain
tin's premises. Verdict was given below
for the defendant and the case
was brought up by the plaintiff on exceptions
to the rulings of the court The court after
reviewing the acts Of March 2, 1881, February
26, 1884, and March 3, 1885, providing for the
| entrance into the city and the laying of tracks
| on the streets for the Washington branch, con-
clnded that such use Of the streets by the
IN hrar rod ~ In,
The act Of July rs, 1866, the court held made
the location Of the Metropolitan branch upon
the street lawful IL placed there by agreement
between the company and the corporation Of
Warrington. This agreement was effected
through the ordinance of the board of alder
men and board Of common council January II,
1857, and the subsequent acceptance by the
council for the route Of the Metropolitan
company of the streets designated by the
branch: The court held then that the plain
mere presence of the Metropolitan branch Of
LIST street is nuisance because Of being an IN
authorized structure.
LEGALITY OF THE ''Y''
As to the lawfulness Of the structure known
as the ''Y" the court held that the section of
the act of 1885 authorizing the construction Of
branches, provided such branches shall not pass
through any Of the reservations, shows that
such branches might be located on streets il
INC COi POTdtc autuOrlueS OF washington as
sented or permitted. 1t was argued that the
'.Y'' was not branch within the meaning of
the law, and the pretended assent to its con-
structlon was not given by any authorized per-
sons. As to first point the court decided that
the ''Y'' may be said to be either branch road
diverging from the Washington branch or a
branch diverging from the Metropolitan
branch. The court held that under the organic
act OF February u, 1871 the assent of the board
which had control Of the streets, succeeding to
the power over the streets held by the
old corporation, would be sufficient to meet
the requirements of the law. The defendant
produced, as evidence of the necessary action
of the board a letter Of A. r. Shepherd, vice
president Of the board, stating that "this board
will permit the connection and the proposed
at tho argument that this letter
was not sufficient evidence Of any action on
the subject by the board. 1t was admitted
however, without objection or exception, and
no instruction relating to such assent was
asked. We need not consider, therefore, Mr..
Justice James said, whether it was the best evil
dence of the fact, and must treat it as tending
to prove an assent. 1t may be remembered. fur
Their, that the long acquiescence in this use Of
the streets is evidence that the board had acted
and given its assent. The court was therefore,
OF the opinion that all of the prayers of the
plaintiff alleging that the occupation of the
| streets by the railroad was without legal right
were properly refused by the court.
UNAUTHORIZED USE OF LAWFUL TRACKS.
But, notwithstanding these tracks were au-
thorized and lawful, the plaintiff would be en-
titled to recover for any grievances suffered by
him by reason Of an unauthorized use Of such
lawful structurse.
1.-The jury were in effect, instructed" con-
tinued Justice James, that the defendant had
no right to use the side tracks on the streets
near the plaintiff place Of business, az side
tracks are ordinarily used in the coupling and
shifting of cars. The ordinary Use of side
tracks for these purposes without reference to
their situation, was thus made the standard Of
the legitimate use of side tracks placed on the
streets of city under special grant OF the use
Of the streets. We have repeatedly held that
the concession of privilege To use the streets
of city was necessarily limited to such use as
! should not destroy the employment of them as
streets, and that what might be an authorized
use of side tracks on land acquired by pur-
chase or by condemnation was an authorized
| abuse OF streets. The question is not how a
side track may be used. but how a street may
be used by party to whom special use has
been conceded"
FORMER OPINIONS.
In Neitzey agt. the Baltimore and Potomac
railroad, 5 Mackey, "a, this court, speaking by
Mr.. Justice Cox, said: '.In the first place the
jury ought to be educated to discriminate
clearly between a rightful and wrongful use
company's right to have numerous tracks in
the Immediate vicinity of its depot or station,
the court said: These are privileges which are
conferred by competent authority, and any in
convenience which may result to private indi-
viduals from their careful exercise is damnum
| absque injuria and not a subject of action at
all. But the company is not author
lied under these acts to convert the public
highways. the streets and avenues of the CITY
| into freight yards. The proper place for cars,
! when not in use, is in the depot station or
yard of the company, and the proper place to
load and unload freight is a freight station. 1t
has no right therefore to cucumber the street
with cars and to leave them there when not in
use. That is an unauthorized occupation of a
public highway
It will be observed that the principle here
applied is that certain uses Of the company 8
tracks are unauthorized because they consti-
tute unauthorized uses of the highway.
In Hopkins agt. Baltimore and Potomac rail-
| road. q Mackey 81 (314), this court, speaking
| by Mr.. Justice Hagner, said: "Tfre fourth ex-
ceptiOn had a more especial reference to the
use of Maryland avenue by the company for
shifting and making up its freight trains in
addition 70 its alleged loading ard unloading
| of freight, and the alleged leaving the cars
standing in the avenue for an unreasonable
time. We hold the only use that can lawfully
| be made Of Maryland avenue by the company
| in shifting and making up its trains must be
| confined to such use as may be reasonably
necessary for the purpose of carefully taking
its into, of carefully t. king it's cars ont