The relief sought in this action, as finally limited on the trial, was an injunction against defendant’s maintaining and operating a railroad track across Fauquier street, in the city of St. Paul, immediately in front of plaintiff’s premises. The plaintiff owned a house and lot fronting north on this street, which was the only means of access to the premises.
Defendant owned a brewery and mill about two blocks south of plaintiff’s premises. The Omaha Railroad was about a block north of plaintiff’s premises. Defendant had constructed an ordinary commercial railroad track from the Omaha road to his mill and brewery. This was his private track, and was used to carry in supplies to the mill and brewery, and to carry out their products. The only authority for the maintenance of this track was an ordinance of the city, assuming to grant to defendant the privilege to lay, use, and operate the same across the street. This track strikes the north side of Fauquier street directly opposite the center of plaintiff’s lot, and runs thence diagonally across the street in a southwesterly direction, striking the south line of 'the street fifteen feet west of plaintiff’s west line. It crosses the center line of the street in such a way as to occupy a small triangular piece of the south half of the street, of which plaintiff owns the fee.
This railroad track is operated with ordinary railroad freight cars and locomotives, there being, on an average, about one train a day, which takes about one minute to cross the street. These trains have been operated with reasonable care, but, when they pass, smoke and cinders are emitted and cast on plaintiff’s premises, which, to some extent, pollute the air, and interfere with the enjoyment of the property, and depreciate its rental value. Plaintiff never consented to the construction of the track or the operation of trains upon it.
The trial court held that the maintenance and operation of this track on the small triangular piece of the street, of which plaintiff *338owned the fee, was a continuing trespass, which he was entitled to have enjoined; but the court denied the motion of plaintiff for judgment enjoining the defendant from maintaining the track, or operating trains on and over any part of the street, to its entire width, lying immediately north and in front of plaintiff’s premises. The correctness of this ruling, upon the facts stated, is the only question in the case.
1. The city had no right or authority to grant defendant a license to construct and operate a purely private railroad upon or across a public street. The provisions, both of 1878 G. S. ch. 34, § 47, and of Sp. Laws 1889, ch. 37, must be construed as having reference only to such railroads as perform the duties of public or common carriers, and which are therefore public or quasi public in their character. Even assuming that the legislature has the power to authorize the use of a public street for the purposes of a purely private railroad, it would require very clear and explicit language to that effect to warrant a court in holding that such was the legislative intention. The right to license one necessarily implies the right to license all to use the streets for such private purposes, which would render the streets well nigh impassable by the public, and amount to a perversion of them from their lawful purposes. Hence, if the defendant has the right to maintain and operate this track, he did not acquire it under this ordinance. State v. Inhabitants of Trenton, 36 N. J. Law, 79; Mikesell v. Durkee, 34 Kan. 509, (9 Pac. 278;) Heath v. Des Moines, St. L. Ry. Co., 61 Iowa, 11, (15 N. W. 573;) Mayor, etc,, v. Harris, 75 Ga. 761; Dill. Mun. Corp. (4th Ed.) § 710, note 2.
2. That the construction and operation of any ordinary commercial railroad on a street is the imposition of an additional servitude, and amounts to a perversion of the street to a use for which it was not intended, which the state or municipality cannot, as against private rights, authorize, the decisions of this court are explicit. Carli v. Stillwater Street Ry. & T. Co., 28 Minn. 373, (10 N. W. 205;) Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, (39 N. W. 629.)
If this is so as to a public railroad, it certainly must be so as to a purely private one.
It is merely begging the question to say that defendant, as the owner of the fee of the north half of the street, has the right to use *339it for any purpose not inconsistent with the public easement. The private right is always subordinate to the public right, and subject to all the limitations and abridgements caused by the exercise of the latter; and hence cannot extend to any use which amounts to a perversion of the street from the uses for which it was intended.
The right of an abutting owner, under certain municipal regulations, to use a part of the street for areas, for purposes of access to basements, for the temporary storage of building material, for laying underground pipes to connect with water and gas mains, stands on a different principle. These are all really included in the general right to use a street for purposes of access to the abutting premises, and have been long sanctioned as legitimate street uses. It is not necessary to consider here just what is the precise limit to the uses to which an abutting owner may put a street for purposes of access to his premises.
It is at least certain that he cannot use the street in any way or for any purpose that amounts to a perversion of it, or to an invasion upon the private right of property of another in the part of the street so used; and this is as far as it is necessary to go for present purposes.
It is the settled doctrine of this court that the owner of a lot abutting on a public street has, as appurtenant to the lot, and independently of the ownership of the fee in the street, an easement in the street, to its full width, in front of his lot, for the purposes of access, light, and air, which constitutes property. Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, (39 N. W. 629;) Lamm v. Chicago, St. P., M. & O. Ry. Co., 45 Minn. 71, (47 N. W. 455.) The act of defendant in maintaining and operating this track on any part of the street, to its full width, in front of plaintiff’s premises, so as to pollute the air, and depreciate their value, was, if not a trespass, at least a nuisance, which amounted to a positive invasion upon plaintiff’s private property rights, and for which he may maintain a private action.
The legal right being clear, and the trespass or nuisance, whichever it be, being a continuing one, he is not confined to successive actions for damages, but may maintain an action to enjoin the constantly recurring grievance; and, where a clear legal right is thus violated, the fad* that the actual damages, if substantial, are comparatively small, is not important
*340Cause remanded, with, directions to the court below to amend the judgment in accordance with plaintiff’s request.