HOKE, J., dissenting. Action for damages for wrongfully closing a public street. These issues were submitted:
1. Is the feme plaintiff the owner of the lots and property, as alleged in the complaint? Answer: Yes.
2. Has the defendant wrongfully closed, or caused to be closed, that portion of Church Street on which feme plaintiff's property abuts, as alleged in the complaint? Answer: Yes.
3. Has the defendant, by closing Church Street at the railroad crossing, interfered with the ingress and egress of plaintiff's property, as alleged in the complaint? Answer: Yes.
4. What damage, if any, has the plaintiff sustained by reason (400) of the closing of Church Street by the defendant, as alleged in the complaint? Answer: $500.
From a judgment for the plaintiff, the defendant appealed. The case of the plaintiff is based upon the contention that the defendant municipality wrongfully and unlawfully closed Church Street where it crosses the tracks of the Seaboard Air Line Railway, whereby plaintiff was subject to inconvenience and damage, for which she avers the defendant is liable.
Upon a careful examination of the record, and giving due consideration to the arguments of the learned counsel for plaintiff, we are of opinion that the motion to nonsuit should have been allowed.
The evidence shows that Church Street proper stopped at the old corporation limits on south side of the railroad. Beyond the corporate limits a pathway or alley crossed the tracks of the company, which was used as a public crossing, but that it has been dedicated as a public *Page 384 street does not appear. This continuation of Church Street, however, where it crosses the tracks, was directed to be discontinued by defendant.
Assuming, for the purposes of this case, that it was a public street of the city of Monroe, upon the evidence, we think the municipality is not liable in damages.
The several ordinances in evidence show that the crossing was regarded as a dangerous one, so that the board of aldermen, in 1903, directed the railroad company to maintain gates and a gatekeeper at it. The ordinances subsequently enacted show that this crossing was discontinued for public safety and convenience. The ordinance reads as follows: "It is ordered that a street of sufficient width to accomodate the public travel be opened from Crowell Street between Church and Depot streets to the right of way of Seaboard Air Line Railway, so as to connect with the overhead bridge to be erected by the Seaboard Air Line Railway across its track, to be built of iron and plans and specifications to be approved by the Board of Aldermen of the City of Monroe. It is ordered that when the said iron bridge is built over the tracks of the Seaboard Air Line Railway, Church Street and Depot Street, or the street passing the present freight depot, shall be closed from the right of way on the south side of tracks to the right of way on the north side of tracks, and shall remain closed so long as (401) the Seaboard Air Line Railway shall keep the overhead bridge in good repair."
Afterwards, another ordinance was passed, discontinuing this crossing, to take effect at once. The defendant offered to show that the overhead bridge was being erected, but his Honor excluded the evidence erroneously, we think; but as the purpose for which the crossing was discontinued appears upon the face of the ordinance, the ruling is immaterial.
The record does not present the question of taking private property for public use, nor the question of the permanent closing of a public street in which an abutting owner has certain recognized rights. Moose v. Carson,104 N.C. 431. The facts disclose nothing more than a closing of a railway crossing in order that an overhead bridge immediately above the crossing may be erected for the use of the public and evidently for public safety and convenience. It may be that plaintiff is inconvenienced and temporarily damaged, but it is damnum absque injuria.
This is a matter committed by the charter of the city to the sound discretion of its authorities. Private Laws 1899, ch. 352, sec. 22. With the exercise of this discretion the courts will not interfere. It is not a taking of private property for public use, and in the absence of express statutory law decreeing compensation, none can be recovered. 2 Dillon *Page 385 on Mun. Corp., sec. 1040; Dorsey v. Henderson, 148 N.C. 423, and cases coted; Cherry v. Rock Hill, 48 S.C. 553; St Louis v. O'Flynn, 119 Ill. 200;Smith v. Washington, 61 U.S. 134.
Reversed and action dismissed.