Theobold v. Louisville, New Orleans & Texas Railway Co.

Citations

• 66 Miss. 279
• 4 L.R.A. 735

Syllabus

<p>1.Street. Use by public.</p> <p>A street is a highway established for the accommodation of the public in passing from place to place, and for such other incidental uses as are ordinarily made of public thoroughfares, such as laying drains, sewers, gas and water pipes, and the like. For such uses public streets are free to all alike.</p> <p>2. Same. Co-existent right of abutting owner.</p> <p>Co-existent with the right of the public to use and improve the street for all ordinary and proper purposes, is the right of the adjacent lotowner to have access to and from his property, and to make such other use of the street as is reasonable and customary.</p> <p>3. Steam Railroad. Additional servitude. Damages to owner.</p> <p>To construct or operate a steam railroad on a public street is to impose an additional servitude, not within the ordinary purposes of such a highway; and if a street is devoted to such use without condemnation or the consent of an abutting owner, he may recover damages from the railroad company for injuries to his property resulting therefrom.</p> <p>4. Same. Whether public has fee or easement. Constitutional right.</p> <p>Whether the public has a mere easement or whether the fee to the street is in the adjacent proprietor, the public, or a third person, the constitutional guaranty of private property applies, and, without compensation being first made, the public cannot lawfully authorize such use of the street by a railroad company against the owner’s consent.</p> <p>5. Distinction between Horse and Steam Railways.</p> <p>In the use of a public street, in respect to the rights of adjacent owners, a difference is recognized between an ordinary horse railway and a steam railroad; but whether the difference is only one of degree the court is not called upon to decide in this case.</p>