Illinois Central Railroad v. Thomas

delivered the opinion of the court.

Repeated and painstaking examinations of the evidence embodied in the transcript in this case satisfies us that about the year 1867'Or 1868, under some agreement or arrangement between the appellant’s lessor, or their predecessor, and the town authorities of Water Valley, the railroad company dedicated to public use the strip of land now, and then, known as Main street, in said town, and, as consideration therefor, the town authorities authorized the removal of the crossing over the railroad tracks where the same were intersected by the old stage road, whereby that old road was shut up and closed against further use by the public, and the railroad company was permitted to inclose and appropriate, and did, in fact, inclose and appropriate to its uses, the ground in its lots which the old stage road had theretofore occupied. The facts shown by all the witnesses on both sides, so far as any of them testify on this point, as to the public use of Main street and the closing of the old stage road, and its inclosure and appropriation and use by the railroad from that time until the present, viewed in the light of the situation of parties, the railroad and the town, leave but little room for doubt as to the existence of some understanding and agreement of the character we have indicated. Let us examine the then situation of the parties.

When the railroad acquired its right of way and its lots purchased of Carr, and established its station at Water Valley in 1855, there was no town there, and, of course, no streets, and the only thoroughfare near its depot was the old stage road, which ran with a long semicircular sweep some distance east of the depot and depot grounds of the railroad, and afforded no access to the depot. This depot itself was built in such manner that its western side was parallel with and faced upon the long and narrow western lot of land bought by the railroad company from Carr, and which is now, and for more than thirty years has. been, called and known as Main street, and, although the old stage road was not abandoned by the town and the public *61for about twelve years later, this western strip of ground began to be used by the public, and has been so used continuously from that day until this. From the laying of the foundations of the town this strip of ground was, and has continued to be, the principal street in the place. Lots were bought by persons on the land immediately west of this street, and houses erected on such lots upon the western boundary of the street. Two of the directors and officers of the railroad company, whose principal offices seem to have then been in Water Valley, erected business houses on the very lot abutting on this street which complainant now owns, and as to which, by the laying of the switch track complained of, he alleges he has been damaged. Thus the situation continued until 1867 or 1868, when the old stage road was finally abandoned as a thoroughfare, and was inclosed and appropriated to its own sole use by the railroad, and Main street, by many public municipal acts and ordinances, taken in control of the town. No candid and unbiased mind can reach any other conclusion, as it seems to us, than that there was a dedication by the railroad and an acceptance by the public, and especially when to these general considerations is added the evidence on this point to be found in the testimony of witnesses Goode, Knight, Mulding and Herring.

The evidence of Mr. Herring is very striking, and strongly persuasive to support the theory of dedication by the railroad com pany and acceptance by the public. Says Mr. Herring; “I heard the president and other officers of the company discussing the closing of said public road (the old stage road) so as to not interfere with the free use o;f this east depot lot for office purposes. The substance of it was this; ‘ The people are already using our west depot lot for a public street, and no longer need the old stage road through the east side lot. We want this closed, and let them use, in lieu thereof, the west strip or depot lot. ’ ”

This discussion occurred about 1867 or 1868, and at a time when Mr. Herring was himself an official of the railroad conn *62pany, and possessed of opportunity to learn the intention of the railroad authorities as to dedicating the land for street purposes. With this direct evidence of Mr. Herring and the other witnesses named, supplementing and corroborating the plain inferences to be drawn from the independent facts themselves, to which we have adverted, the case for appellee along this line is powerfully strengthened, and to us appears qüite satisfactory.

If, however, it shall be thought that there is room for doubt as to the dedication and acceptance, we do not see how any man, prejudiced or unprejudiced, can believe, in view of all the evidence of all the witnesses on both sides who are qualified to speak, from personal knowledge and personal observation, that the public has not used this ground as a street, openly, notoriously, and adversely, for more than thirty years. Indeed, as already stated by us, Main street is the seat and center of the business life of the place. More. than that, it is the only street running north and south through the town which has an exit across the southern limits of the place. Close this street, thus used for more than thirty years, and there remains no southern highway'to this populous and flourishing little city. To talk of this street not having been used openly, notoriously, and adversely during all these years, is as profitable as to undertake to demonstrate that two and three make four. It is idle to undertake either task. We do not understand the learned and conscientious counsel for the railroad to combat the proposition that the town has’ acquired the right to this street by user for more than thirty years — the right to the easement, by prescription, as counsel prefer to denominate it. The contention for the railroad company, as we understood it, is that not all of the ground lying between the western platform of its station house and the eastern curbstone of the sidewalk on the west side of Main street is really part and parcel of the street, but that a strip of ground, in width about fifteen feet, lying immediately alongside and adjacent to the western side of the depot and platform, has not been used as part of *63Main street, but that the same has remained in the possession of the railroad, and has all along been used and controlled and managed by it. This contention rests largely upon the fact that, not the railroad company, but its patrons, have used this strip of fifteen feet as an approach or driveway to the platform of the railroad company to deliver and receive freight. To our mind, this fact affords little, not to say no, support to this contention, for, at last, it only shows that the general public used this strip for one particular business purpose, rather than for general driving and riding, as was, and is usually, done in the middle of streets, instead of near the outer edge of the street, and in close proximity to buildings adjoining such outer edge.

But it is shown that the railroad company filled in this strip of fifteen feet with cinders and gravel, after the erection of its new depot building, and within the last four or five years. This work, however, was manifestly done to render the approach to the platform of the new depot easier and more convenient to that portion of the public having freights to deliver upon, or receive from, the new platform. Beside the additional fact shown of the erection of a telegraph pole and guy post on this strip by a telegraphic company, with the consent of the railroad company, we recall no other act of the railroad company evificing any claim of possession and ownership of the strip of ground.

On the other hand, the overwhelming weight of the testimony in the case bears out the contention of the appellee as to the use of the entire street, from the platform on the east side of the street to the curbstone on the west side, by the city. This evidence is too voluminous to be even abstracted, and we content ourselves with the general statement of its tenor and effect just made by us. It follows that the railroad company had no right to lay down the new switch track and devote it to the purposes designed for its use, and if such action was shown to be a nuisance, for any or all of the reasons shown by appel*64lee’s evidence, and therefore hurtful to his property, as we are of opinion was done, the learned court below properly retained the injunction.

Affirmed.