I concur in the judgment and also in the opinion except in so far as the last point discussed is concerned. As to that I also concur generally in the views expressed, and in the conclusion reached to the effect that the railroad company was entitled to a substantial sum as and for the taking of its property. As I understand the record, the whole of the strip of land, approximately thirty feet in width and one thousand six hundred feet in length, owned in fee by the company, is condemned for the purposes of a public street. Simply because the company is to be allowed to use this street for the same purpose that it is now using the property as owner, as a railroad right of way, nothing is allowed as for a taking of property, and this although such use will henceforth be the ordinary use in common with the public of a public street, subject to all conditions and restrictions imposed on railroad companies granted a right to use a public street as a right of way.
The more I consider this matter, the more strongly I feel that this view is not only manifestly unjust and inequitable, but also unwarranted in law. The relative situation as regards this property prior and subsequent to the condemnation is well set forth by counsel for the company as follows: "The defendant is the owner of the fee and had, before the condemnation, the right to excavate and carry away any portion *Page 204 of the soil or to change the grade of its road at will, or to store ties, poles, or other materials along the right of way, or to build sidetracks, to store cars thereon, or to build waiting stations, platforms, depots, warehouses, repair-shops, or other structures upon said strip of land (which is not entirely occupied by the existing tracks), to fence the same against trespassers, and to exclude all of the public from travel thereon except when transported in the defendant's cars, and to use it in any other way that the owner of property may use it, either on, above, or below the surface of the earth, so long as the use is not such as to become a nuisance. But by the condemnation in the case at bar, by the paving of the street, which will follow, the city has taken from the defendant all of the substantial value of its ownership of the land, and has left it, as we said before, only the right to use the surface as one of the general public, subject, of course, to increased hazard of accident, increased expense of operation and maintenance, impaired running time, and very substantially impaired enjoyment of the property in general. The control over the surface of the ground is now vested in the city, instead of the defendant, and the use of the subsoil has become nil."
To my mind there is here an actual taking of property within the meaning of our law relative to eminent domain, and the company is entitled, as a prerequisite to such taking, to a substantial sum as and for the value of the property thus taken. The crossing cases are sufficiently distinguished, to my mind, in the opinion.
As already noted, the property sought to be condemned does not constitute "only a part of a larger parcel" (Act of 1903, sec. 10, Stats. 1903, p. 379). The whole of a parcel of land owned and used by the railroad company is thus taken for street purposes. I doubt, therefore, if there is any basis for an award to the company except as and for the value of the "property sought to be condemned, and all improvements pertaining to the realty."
Lawlor, J., concurred.