dissenting.
For several reasons which I will briefly give, it is impossible for me to unite in the opinion announced in this case by the majority of the court.
My first objection to the opinion is, that it completely ignores one of the principal questions presented by the record for our decision, viz., that as to the proper rule of damages between an abutting lot owner and a railroad company for laying and operating a railroad within a street of a city. It leaves one-half of the case really undecided.
The matter of complaint is stated in the petition in two counts or causes of action: one for obstructing a street, and the other for obstructing an alley upon which the lots in question abut, by the defendant’s railroad. No allusion is made in the opinion to the incumbrance of the street, and whether the rule applied to that of the alley is to govern is left entirely to conjecture. As this question will necessarily again arise on a new trial, the court below ought, I think, to have been advised as to whether its former ruling in that particular is also open to objection. This silence respecting it, whether so intended, or otherwise, is well calculated to leave the impression that it is not. For myself, however, I desire to say that where, as is the casein this state, the fee of alleys as well as of streets in a city is in the corporation for the use of the public, I am aware-of no case in which any distinction in this respect has been-recognized. The same principle I think should govern as to both.
The chief fault, however, that I find with the opinion of my brethren is, that while it lays down a rule which may perhaps find reasonable support in the authorities they cite, the case as made by the record is not within it. Indeed, I take upon me to say that they cite no case of which it can fairly be said that upon the facts of this one, the court deciding it would have sustained a recovery of damages.
*562The gravamen of the complaint here is, that the defendant’s railroad track, on which it is running its cars, is laid across a street and along an alley of the city adjoining the plaintiffs lots, which are thereby damaged. Admitting all this to be true, I think it is clear by the light of authorities that the plaintiff’s case is fairly within the rule of damnum absque injuria.
It seems to be conceded by my associates, and doubtless it is true, that but for the provision of our constitution which secures to owners of property simply “damaged” —not taken — for public use, just compensation, the road having been constructed under legislative authority, there would be no right of action for the act complained of. Where there is no permanent taking away of any portion of the street, but only the mere obstruction of passing trains to the temporary inconvenience of those wishing to use it, this is not such an element of damage to an adjoining estate as will authorize a recovery. Caledonian Railway Co. v. Ogilvy, 2 Macq. H. L. Cas., 229.
My associates concede also that the right to compensation given by our constitution is not at all unlike that secured by the sixty-eighth section of the lands clauses consolidation act and the sixth section of the railway clauses consolidation act of the English parliament, where lands are injuriously affected by a railroad. Therefore the adjudged applications of those sections by the higher English courts ought, I think, to have great weight with us in determining the full scope and effect to be given to sec. 21 of our bill of rights.
One prominent feature of the English decisions under those statutes is, that to justify a recovery the damage must be one for which an action would lie if the work causing it were not authorized by parliament. In the case of Beckett v. Midland Railway Co., L. R. 3, C. P. 82, which may be regarded as a leading one on this subject, the principal question was as to whether certain premises fronting *563on a street through which the company had built its road were “injuriously affected” within the meaning of the English statute.
Although the facts of that case were held sufficient to make the company liable, it is quite clear to my mind, from what was said by the judges in applying the law to them, that those of the one we are considering are not. In that case, the roadway in front of the plaintiff’s premises, which had formerly been fifty feet wide, was reduced by the embankment for the railroad to thirty-three feet, in consequence of which the light in the lower portion of the house had been sensibly diminished, and great discomfort and inconvenience occasioned to the occupants by reason of carriages being compelled to go a considerable distance beyond the gate before they could turn. As to seventeen feet of the roadway, the occupancy by the company in consequence of the elevation of the railroad track, was exclusive. In thus permanently diminishing the light and rendering the approach inconvenient, a special injury was done to the plaintiff’s property; and it was upon this ground that the recovery was sustained. Wells, J., in giving his views, said, that to entitle the claimant to compensation “two things must concur, viz., that he has sustained a particular damage from the execution by the company of the works authorized by the special act, and that the damage was one for which he might have maintained an action if the work was not authorized by parliament.” And he said also, “that the injury he complains of was an injury to his estate, and not a mere obstruction or inconvenience to him personally, or to his trade, although it might have been the subject of an action if the works which occasioned it had not been executed under the sanction of parliament.” And in Rickett v. Directors, &c., of Metropolitan Railway Co., Law Rep., 2 H. L., 175, it was held that no case comes within the purview of those sections of the English statutes, “unless in respect of damage to the land itself, which damage *564would have been the subject of an action at law before those statutes.” In this case Lord Cranworth, in giving his view of the subject, used this language: “Both principle and authority seem to me to show that no case comes within the purview of the statute, unless where some damage has been occasioned to the land itself, in respect of which, but for the statute, the complaining party might have maintained an action. The injury must be actual injury to the land itself, as by loosening the foundation of buildings upon it, obstructing its light or its drains, making it inaccessible by lowering or raising the ground immediately in front of it, or by some such physical deterioration. Any other construction of the clause would open the door to claims of so wide and indefinite a character as could not have been in the contemplation of the legislature.” See also the remarks of the Lord Chancellor Chelmsford, who took substantially the same view. And this being a decision of the House of Lords, the case is certainly entitled to great weight as an authoritative exposition of the law on this subject.
The only other English case I care to refer to in this connection is that of Chamberlain v. The West End of London, etc., Railway Company, 2 B. & S., 605 (110 Eng. Com. Law Repts.) This case was under the lands clauses consolidation and railway clauses consolidation acts, and in passing upon it Cockburn, Ch. J., said: “That if an action would have lain for the injury done by the company’s works, unless their act had authorized them, then the land is injuriously affected, and compensation may be awarded.” The injury here complained of was caused by an embankment made for the railroad in the street immediately in front of the plaintiff’s premises to the height of the first floor windows, which effectually prevented access to the houses thereon except by a “ deviation road,” as it is called, which had to be made, and which was much less convenient than the old one had been before the obstruction.
*565A case cited by my associates, the one, indeed, on which they seem chiefly to rest for support to their opinion, which is made up chiefly of quotations from it, is Rigney v. the City of Chicago, 102 Ill., 64. As an authority, however, that case is much weakened, not only by the fact of it having been decided by a divided court, but also because it is directly opposed to that of the Chicago, Milwaukee and St. Raul R. R. Co. v. Hall, 90 Id., 42, wherein a like question, under the same constitutional provision, was decided the other way by a united court. In the last mentioned case, it was claimed that the plaintiff’s premises fronting on a street in the city of Chicago were damaged by the laying of a railroad track in the street near his dwelling, and by leaving cars standing on the same, “thereby impeding access to and egress from his property.” Also, “by reason of smoke, dust, and cinders being cast from locomotive engines, by passing on the tracks, upon his house and lot.” As in the case before us, there was no complaint of either cut or embankment, but the tracks seem to have been on a level with the surface of the street. On this state of facts the court held that “ the measure of damages is the loss sustained by the nuisance, the injury from jarring the building, the throwing of cinders, ashes, and smoke upon appellee’s premises. The depreciation of the value of the property by these causes may be considered, but not general depreciation in value from other causes — mere inconvenience in approaching or leaving the property, or the noise and confusion in the vicinity. The injury must be physical.”
In the case of Rigney v. The City of Chicago, the court professed to keep within the line of the English decisions to which I have referred. And it is quite possible that the facts of that case' warranted the conclusion that the damages were such as to bring the city fairly within the rule of liability laid down by the English courts. The embankment complained of, although not directly in front *566of the plaintiff’s premises, was but a short distance away, and was such as to almost entirely prevent approach to them from Halstead street, one of the principal thoroughfares of the city.
But whilst forbearing the expression of an opinion as to whether the damages in that case were within the established English rule, I am very certain that those complained of in the case at bar are not. In this case there is no physical disturbance whatever of the lots, which appear to be practically unimproved. It is not claimed that the railroad is either above or below the surface of the street and alley, and therefore it is probably on a level with them. Neither is it claimed that any difficulty is experienced in crossing and re-crossing the road, or traveling along it, save when occupied by the company’s cars. It does not appear that this portion of the road is within the limits of depot grounds, so it can be lawfully occupied by the company to the exclusion of the plaintiff and others who may have occasion to go there, only so long as is reasonable for the passage of moving trains over it. If more time is taken than is reasonable, to the hindrance and injury of another, the proper remedy may be found in an action for damages, not to the lots, but to the individual thus discommoded.
Again, the injury here complained of is not within the English rule of liability for still another reason, which is, that it is not different in kind, although perhaps different in degree, from that experienced by every other person having occasion to pass along the street or alley. “The fact that a claimant sustains damages greater in degree, if not different in kind, will not entitle him to a recovery.” Lord Chancellor Chelmsford, in Ricket v. Directors, etc., of Metropolitan Railway Co., supra. No portion, either of the street or alley, is permanently taken away. There is “the mere obstruction of passing trains to the temporary inconvenience” of the plaintiff and others wishing to use them, *567which "is not such an element of damage to an estate as will authorize a recovery.” Caledonian Railway Company v. Ogilvy, supra.
And finally, the injury is not within that rule, for the additional reason that, even if the company had not been authorized by the legislature to occupy the street and alley for this new public use, the matter complained of is not such an injury to the plaintiff’s lots as gives a right of action. Such an action, as I understand, can be maintained only on the ground that the injury is such as amounts practically to a taking of property, which that shown in this case clearly is not. A railroad laid upon a highway or street of a city, especially where the fee is in the public, is not necessarily a nuisance. Angel on Highways, 2 ed., §§ 242-244. “ While the laying of a railroad on a highway without any peculiar or direct injury to the land owner is not a taking of his property, changes in its surface, and erections which destroy or materially obstruct his access to and use of it, and cause him special damage, may be treated as such taking; and this is the substantial result of many well considered authorities.” Pierce on Railroads, 241. But detention and danger in crossing, the frightening of horses, and similar inconveniences and discomforts not amounting to a practical obstruction are, however, not a taking of private property; nor are such injuries, when not caused by negligence, actionable. The reason that an action for such injuries at the suit of a private person will not lie is, that they are not peculiar to him alone, but are shared in greater or less degree by the entire community. Probably it is otherwise where the fee of the street is in the adjoining proprietor, the land having been condemned only to the uses of an ordinary highway.
Eor these reasons I am of the opinion that the judgment of the district court is right, and ought to be affirmed.