4

Stockdale v. Railroad.

defendant railway company the right to occupy the street and sidewalk with its spur track, it does not clothe it with power by which it can rightfully extend the track on and over the premises of its codefendant, and to maintain and operate it to the irreparable damage of plaintiffs' property. And the evidence shows that the operation of that portion of the spur track which is constructed on the private property of the Anheuser-Busch Brewing Association would be a source of great annoyance and discomfort to plaintiffs and their tenants, and would, in effect, as found by the court, amount to a private nuisance. Section 3506, Revised Statutes 1898; Wood on Nuisances (2 Ed.), p. 127; Lewis on Eminent Domain, section 152.

5

Under the provisions of the Constitution of this State hereinbefore referred to, a party whose property is about to be specially damaged in any substantial de

gree for public use has the same rights and is given. 6 the same remedies for the protection of his prop

erty from the threatened injury as would be accorded him if his property was actually taken and appropriated for such use. That such is the spirit and intent of the foregoing provision of the Constitution is evident from the tone and character of the extended discussions on this question in the constitutional convention at the time the provision was adopted and became a part of the organic law of the State. Pages 326344, 623-654, Proceedings Const. Conv. 1895.

7

We do not wish to be understood as holding that every inconvenience that an individual may be subjected to in the possession and enjoyment of his property because of the construction and operation of a railroad or other public utility in the vicinity of his premises entitles him to damages or injunctive relief. The rule is well settled that no recovery can be had for losses and inconveniences which are suffered in common with the general public. Elliott on Roads & Streets

Stockdale v. Railroad.

(2 Ed.), section 262; Lewis on Eminent Domain (2 Ed.), section 236a.

Before the appellant railway company can subject the property in question, or any part thereof, to the burdens to which it would be subjected by the running of cars and engines over the switch referred to, it must proceed under the law of eminent domain, as contemplated by the foregoing provision of the Constitution, and as required by the statutes of this State.

8

The judgment of the district court, so far as it affects that portion of the switch track located on the public street and requires the removal of the entire spur, is vacated, and said court is directed to so modify its findings and decree; but the judgment, in so far as it restrains the defendant railway company from operating cars and engines on the portion of the switch track located on the premises of the Anheuser-Busch Brewing Association, is affirmed. The costs of this appeal are taxed against the appellants.

BASKIN, C. J., concurs.

BARTCH, J. (concurring in part and dissenting in part). I concur in that portion of the opinion which holds that the findings of the trial court that the city council exceeded its authority in granting the franchise to construct a spur track upon the street, and that the spur track is a public nuisance, are erroneous, and in that portion of the judgment of this court which vacates the judgment of the lower court in so far as it affects "that portion of the switch track located in the public street, and requires the removal of the entire spur;" but I dissent from the remaining portion of the opinion and judgment herein, because I do not think the facts in this case warrant interference by injunction, nor a proceeding under the law of eminent domain. If the operation of the spur should, through carelessness or otherwise, cause injury to the plaintiffs, they have a remedy in damages.

REPORTS OF CASES

DECIDED IN

THE SUPREME COURT

OF THE

STATE OF UTAH.

OCTOBER TERM, 1904.

THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, Respondent, v. JOHN STRICKLEY and ELLEN STRICKLEY, his Wife, Appellants.

No. 1540. (78 Pac. 296.)

1. Eminent Domain: Public Uses: Tramways: Mining. The construction and operation of roads and tramways for the development and working of mines is a public use, so that -Revised Statutes 1898, section 3588, as amended by Sess. Laws 1901, p. 19, c. 25, authorizing condemnation therefor, is constitutional.1

3. Appeal: Specification of Points Relied on. Questions dicussed in appellant's brief cannot be considered, neither the abstract nor brief containing a specification of the points relied on as grounds for reversal, as required by Supreme Court, Rule 6 (49 Pac. xi).

2. Legislative Enactments: Constitutionality: Presumption.

Legislative enactments are presumed to be constitutional unless the contrary clearly appears.

'Nash v. Clark, 27 Utah 158, 75 Pac. 371.

2 State v. Tingey, 24 Utah 225, 67 Pac. 33; State ex rel. v. Lewis,

26 Utah 120, 72 Pac. 388.

(215)

Mining Co. v. Strickley.

(Decided October 26, 1904.)

Appeal from the Third District Court, Salt Lake County.-Hon. S. W. Stewart, Judge.

Action to condemn a right of way for plaintiff's aerial tramway over defendant's mining claim. From a judgment in favor of the plaintiff, the defendants appealed.

AFFIRMED.

Frank Hoffman, Esq., for appellants.

Kent, in volume 2, page 339, of his Commentaries, says: "The right of eminent domain, or inherent sovereign power, gives to the Legislature the control of private property for public uses and public uses only;" and on page 340, "But if they should take it for a purpose not of a public nature, as, if the Legislature should take the property of A and give it to B, or if they should vacate a grant of property or of a franchise, under the pretext of some public use or service, such cases would be gross abuses of their discretion, and fraudulent attacks on private right, and the law would be clearly unconstitutional and void." The same view is taken by other authors. Smith on Statutes, secs. 136-7; Sedgwick on Statutes, 514; Angell on Highways, secs. 86-7. And it will be found to be sustained by numerous decisions of court and judges of the greatest weight and authority. Wilkinson v. Leland, 2 Peters 653; West River Bridge v. Dix, 6 How. 545; Scudder v. Delaware Falls Co., Saxt. 726; Sinnickson v. Johnson, 2 Harr. 129; Beekman v. Railroad, 3 Paige 73; Varick v. Smith, 5 Paige 159; In re Albany Street, 11 Wend. 149; Bloodgood v. Railroad, 18 Wend. 56; In re Johs & Cherry

Mining Co. v. Strickley.

Streets, 19 Wend. 676; Taylor v. Porter, 4 Hill, 140; Harris v. Thompson, 9 Barb. 361; Embury v. Connor, 3 Comst. 511; Hepburn's Case, 3 Bland 98; Bowman v. Middleton, 1 Bay 252; Pittsburg v. Scott, 1 Barr 309; Cooper v. Williams, 4 Ohio 253; McArthur v. Kelly, 5 Ohio 139; Buckingham v. Smith, 10 Ohio 288. In the case of Wilkinson v. Leland, a statute of Rhode Island, which had no written constitution, transferred title to lands. Story, J., says that "the doctrine is utterly inconsistent with the great and fundamental principles of a republican government, and with the right of the citizens to the free enjoyment of their property. "We know of no case in which a legislative act to transfer the property of A to B, without his consent, has ever been held a constitutional exercise of legislative power in any State in the Union."

99.66

The case of Warehouse Co., 96 N. Y. 42, heretofore cited, was cited and affirmed in the case of Cole v. La Grange, 113 U. S. Reports, page 6, Book 28, Co-op. Edition, page 896, wherein that court says:

"The general grant of legislative power in the Constitution of a State does not authorize the Legislature, in the exercise either of the right of eminent domain or the right of taxation, to take private property, without the owner's consent, for any but a public object."

The right to impose a tax for a private purpose is universally conceded to rest upon the same proposition as the right to take property for private purposes.

I cite the Savings and Loan Association v. Topeka City, Co-op. Edition U. S. Supreme Court Reports, p. 255. In the syllabus we find:

"1. A statute which authorizes towns to contract debts or other obligations payable in money, implies the duty to levy taxes to pay them, unless some other fund or source of payment is provided.

"2. If there is no power in the Legislature which passes such a statute, to authorize the levy of taxes in aid of the purpose for which the obligation is to be con