The court was satisfied that the plaintiff's property had been depreciated somewhat in value by reason of the construction and operation of the railroad, and the inquiry was whether the damages thus inflicted were such as were contemplated by section 21 of article 2 of the state constitution. It was not claimed by plaintiff that there was any physical injury done to its property, or that its possession was disturbed; and it was shown that the street was dedicated without restriction to general use as a highway; that the defendant was authorized by the charter and ordinance of the city to lay its tracks along the street, and to operate thereon; and that the track was laid on the established grade of the street, and constructed in a careful and skillful manner, and in strict compliance with the requirements of the ordinance. It was conceded by the court that every owner of a lot abutting on a public street, besides the ownership of the property itself, had rights appurtenant thereto, which formed a part of the estate, among which might be named an easement for the free [147 U.S. 248, 257] admission of right and pure air, and the right of ingress and egress to and from the property; that the interest of the lot owner in the adjacent street was a peculiar interest, which neither the local nor the general public could pretend to claim; a private right in the nature of an incorporeal hereditament legally attached to the contiguous ground; an incidental title to certain facilities and franchises which was in the nature of property, and which could no more be appropriated against the owner's will than any tangible property of which he might be the owner. And it was held that depriving the owner of these incorporeal hereditaments by interfering with their full enjoyment in the appropriation of the street to a new and different public use than that originally contemplated would undoubtedly be a damage within the constitutional provision; but the court was of opinion that the laying of a railroad track in the street, on grade, and operating the road in the usual manner, was not applying the street to a new public use which required the payment of compensation for damage to the property; that when land is dedicated generally, and without restrictions, or condemned for a public street in a town or city, the owner of the abutting lots who secures the benefit of the street, and persons also who purchase and improve property thereon, hold their property rights subject to all the uses to which the street could be lawfully subjected by the public; and, after quoting with approval from the majority opinion in Julia Bldg. Ass'n v. Bell Telephone Co., the court said: 'There has been great diversity of opinion among the courts of this country as to whether, though under proper legislative authority, laying a track on the established grade, and operating a steam railroad thereon, in the transaction of commercial business, along a street, is subjecting the street to a public use not contemplated in a general grant or dedication. Whatever the rule may be elsewhere, this court has been uniform in holding that such a use is not a perversion of the highway from its original purposes. Lackland v. Railroad Co., 31 Mo. 180; Porter v. Railway Co., 33 Mo. 128; Cross v. Railway Co., 77 Mo. 321; Julia Bldg. Ass'n Case, supra; Smith v. Railway, 98 [147 U.S. 248, 258] Mo. 24, 11 S. W. Rep. 259; Kansas City, St. J. & C. B. R. Co. v. St. Joseph T. R. Co., 97 Mo. 469, 10 S. W. Rep. 826; Rude v. City of St. Louis, 93 Mo. 414, 6 S. W. Rep. 257. ... It appears from the evidence that the only substantial damage which was special to plaintiff and not common to the public, shown by it, consisted in the interference with its free access from the street to its factory; the obstruction of the light and air across the open street; smoke, cinders, and dust from engine and cars; noise and jarring of the ground,-all caused by the movement of trains. These may cause damage to, and depreciation of, the value of the property, but the damage results from a legitimate use of the street, and which might have been anticipated by plaintiff as a probable use when it bought its property and erected its improvements.' And it was concluded that, while for any damages that might be caused by the unlawful or negligent maintenance of the tracks in the street or by negligent use of engines or movement of trains, defendant would be liable in an action to recover them, plaintiff had shown no ground for injunction. This decision, although rendered some years after the entry of the decree under review, must be regarded as an authoritiative exposition of the previous judgments of that court upon the same subject.
As a general rule, this court follows the decisions of the highest tribunals of a state, upon the construction of its constitution and laws, if they do not conflict with or impair the efficacy of some provision of the federal constitution, or of a federal statute; but we are not required to express an opinion as to the applicability of that rule in this case, as the decree must be affirmed on other grounds.
Whenever the power of eminent domain is about to be exercised without compliance with the conditions upon which the authority for its exercise depends, courts of equity are not curious in analyzing the grounds upon which they rest their interposition.
Equitable jurisdiction may be invoked in view of the inadequacy of the legal remedy where the injury is destructive or of a continuous character, or irreparable in its nature; and the appropriation of private property to public use, under color of law, but in fact without authority, is such an invasion of [147 U.S. 248, 259] private rights as may be assumed to be essentially irremediable, if, indeed, relief may not be awarded ex debito justitiae.
But where there is no direct taking of the estate itself, in whole or in part, and the injury complained of is the infiction of damage in respect to the complete enjoyment thereof, a court of equity must be satisfied that the threatened damage is substantial, and the remedy at law in fact inadequate, before restraint will be laid upon the progress of a public work; and if the case made discloses only a legal right to recover damages, rather than to demand compensation, the court will decline to interfere.
In McElroy v. Kansas City, 21 Fed. Rep. 257, which was an application for an injunction to restrain the grading of a street in front of the complainant's lot, Mr. Justice Brewer, then circuit judge, considered under what circumstances a chancellor could grant such relief. It was ruled that, if the injury which the complainant would sustain from the act sought to be enjoined could be fully and easily compensated at law, while, on the other hand, the defendant would suffer great damage, and especially if the public would suffer large inconvenience, if the contemplated act were restrained, the injunction should be refused, and the complainant remitted to his action for damages. It the defendant had an ultimate right to do the act sought to be restrained, but only upon some condition precedent, and compliance with the condition was within the power of the defendant, the injunction would almost universally be granted until the condition was complied with; but if the means of complying with the condition were not at defendant's command, then the court would adjust its order so as to give complainant the substantial benefit of the condition, while not restraining defendant from the exercise of its ultimate rights. Inasmuch as, while the statutes of Missouri provided for the assessment of damages resulting from the taking of property for public use, there existed no provision to attain that result where the property was merely damaged, an injunction was granted, with leave to the defendant to apply for the appointment of a board of commissioners to ascertain and report the damages which complainant would [147 U.S. 248, 260] sustain, upon payment of which the injunction would be vacated.
Assuming, as the circuit court did, and as we prefer to do in disposing of the case upon this record, that, if the complainant had sustained damages, it had a cause of action, we nevertheless entirely agree that the bill was properly dismissed.
Evidence was adduced of the extent and character of the alleged damage, although the circuit court did not undertake to go into the question of amount, and the result was that the court concluded that the use of the track had not seriously obstructed, and would not in future seriously obstruct, access to complainant's premises, and that the lessening of the market or rental value of the property was, in any event, small; that a jury might find that no damage had been sustained, or that it was inconsiderable; and that there was no proceeding which defendant could take to obtain an assessment of damages, if any, while the complainant had an adequate and simple remedy by an action at law.
The prayer was for an unconditional injunction, and, although this was coupled with a prayer for general relief, a decree different from that specifically prayed could hardly have been awarded under the general prayer, as the averments of the bill were not introduced for that purpose, and besides, the complainant explicitly disclaimed upon the hearing any desire for the ascertainment of damages in this proceeding.
The statutes of Missouri provided for the assessment of compensation for the taking of property for public use, but not for such assessment where property was merely damaged, and complainant occupied the positition of seeking by an absolute injunction to compel the defendant to pay such amount as accorded with its own judgment upon that matter. It may be that, if this had been a case where compensation as such was demandable, the defendant, by filing a cross bill, could have obtained an order such as was entered in McElroy v. Kansas City, but it is useless to indulge in speculation in this regard.
We are satisfied that complainant was not entitled to the relief prayed, and the decree of the circuit court is accordingly affirmed.