dissenting.
It seems to me that there is some confusion in the line of argument pursued by the defendant in error in this case. Nobody will deny that private property cannot be taken by a railroad company, for its use, without compensation. That is not the question. If the plaintiffs in these cases own the land over which this road runs, they are very clearly entitled to compensation for its occupation, if they have never got it. But, whilst it may be admitted that, prima facie, the owners of the land on each side of a public highway are the owners *563of the soil of the road, each to the centre, yet it would be absurd to say that this may not be shown, by proof, not to be true. The presumption is based upon the known history o'f the laying out of highways, to-wit: That, ordinarily, the public, by virtue of its right of eminent domain, takes possession of the land of citizens, and appropriates it, under the law, after due compensation, to public uses. But this is not always true. The public may own the whole land, as is usually the case in our country towns, and may sell lots, reserving the streets to its use. Surely it cannot be said that one whose land is described by meets and bounds, and acres and purches, gets any more than is covered by his deed. And just that is the case, as to the city of Augusta, and as to Washington street. The land belonged to the State. The street was laid out by the public, the lots sold by meets and bounds, by acres and purches, to those who desired to purchase.
It cannot, therefore, be said that there is, here, any taking of private property for public use. The property taken already belongs, and always has belonged, to the public. The real and only question here is, has the public the right to use a street, the property, the fee of which is, in itself, but which has been dedicated to the use of the citizens, as a street, for the purpose of running a railroad through it. In other words, did the public, by dedicating this land to public use, as a street, contract with anybody that it should not be used for the purposes it is now used? So far as the public in general are concerned, that public are represented by the public authorities, and they having consented to this use of it, are not complaining.
At last, therefore, the question is as to the rights of the lot owners. When they bought their lots on this street from the public, what right did they acquire in the street? In my judgment, they got a right to free egress and ingress, so far, and so far only, as was consistent with the legitimate use of the street by the public, for the purposes of a street.
*564Clearly, they did not get the right to a quiet sired, to a street in which there should be no dust, nor rattling of vehicles, nor jostling of crowds. Every man buying and building on a street buys and builds with the understanding that the street, may become a noisy, dusty, thronged and busy thoroughfare. The public, which owns the street and sells the land, very clearly, only contracts that the street shall be kept open for egress and ingress as a street, with the right, on the part of the public, to use it for any legitimate use to which a street may ¡be subjected. The holders of the lots have this property right in the street, and that is all. It is a private right in each lot owner, and he has a private right of action for its infringement.
Is the use of steam to draw cars over this road a violation of this right ? It is admitted that the right of egress and ingress is not interfered with. Indeed, it appears that the street may be crossed much more easily than before. JSTor is there any more obstruction to passing up and down than there would be if the work now done by steam were done by waggons, probably nothing like so much. It seems absurd to me to say that a purchaser of a lot on a public street has his rights infringed by the passage of a steam car through the streets. I know of no single evil that comes to him that does not come every day in a greater or lessjdegree to every man in the community since the introduction of steam. Is he interfered with by noise ? Does not this shrieking passenger go screaming through every part of the land every night ? Are horses frightened? Children put in danger? Sickbeds disturbed? Is not this true everywhere? It is intensified, it is true by close proximity, but that does not change the right.
These are all public evils, common to everybody. The public agrees to bear them, for the good which comes from the use of steam. As I have said, no man has a private right in quiet street, or a deserted and grassy street.
That foot-passengers or quiet carriages shall give way to *565drays and heavy wagons and coarse, rough people; that it shall be paved and be turned from a quiet muddy street to a noisy dry one; that it shall be difficult to cross, or to go up and down on it, because it is passed over by so many people with so much traffic, all these are contingencies which every man takes who builds on a street. He has no right of action for any of them, not because they are damnum absque injwia, but because he has no right to be infringed. He has no contract, either express or implied, with anybody to the contrary. What kind of vehicles shall pass over the public streets, whether wheel-barrows, sedan-chairs, carriages, drays, cars or engines, it is for the public to say. If the right of egress and ingress is preserved to the owners of lots, the use of the street for passing is the right of the public.
As a matter of course, I recognize the right to sue for any injury to the property. If a good, sound wall is broken down, if plastering that would have stood the jar of drays over a stony street is shattered by these heavy trains, if actual damage comes to the property, that is another thing.
People, however, who build on a public street, must lookout that they do not put up such flimsy structures that they will be damaged by the use of the street by such vehicles as the public authorities may, in their wisdom, consent to be used for passing over it.