119 P. 414 | Okla. | 1911
This action was originally brought in the court below by defendant in error, hereinafter referred to as "plaintiff," against plaintiff in error, hereinafter referred to as the "railway company," to recover damages for the depreciation of the value of his property occasioned by the railway company's constructing its railway beds and tracks in front of his lot and interfering with the use of them. The cause has been before this court once before. Bullen v. Ark. Val. W. Ry. Co.,
The railway company by its answer denies all the allegations of plaintiff's petition, except such as are expressly admitted. It thereupon admits that the city of Perry by ordinance vacated that portion of the street in front of plaintiff's property; and that, before it constructed its road thereon, the land lying in said street to the center thereof in front of plaintiff's property attached to plaintiff's property in the nature of an accretion thereto. It admits the construction of its railway tracks upon a portion of said street that has become attached to plaintiff's lots, that the construction was wrongful, and that it is liable to plaintiff for his just damages.
There was a trial to a jury to ascertain the amount of damages. The jury found plaintiff's damages at $1,800. The only question presented for our determination in this proceeding arises upon an instruction given by the court to the jury, and upon instructions requested by the railway company but refused by the court, all of which bear upon the question of what the jury may take into consideration in ascertaining the amount of plaintiff's damages. The instruction given by the court and complained of is not free from ambiguity; but there is no controversy between counsel that it has the effect to authorize the jury in arriving at the amount of plaintiff's damages to take *39 into consideration as an element thereof the destruction by the railway company's lines of railway of plaintiff's right of ingress and egress to and from his property over said A street in front thereof. By instructions requested by the railway company and refused by the court, the court was asked to instruct the jury that upon vacation of said street in front of plaintiff's lots said street became the private property of the owners of the adjoining lots; and that thereupon plaintiff had no right whatever to use same as a street for the purpose of ingress and egress to and from his lots; and that they should not allow plaintiff any damages, because of the obstruction of the street and interference with plaintiff's egress and ingress thereover to and from his property. We think the court committed error in giving the instruction objected to and in refusing the instruction requested involving this question. Whether, in the absence of special legislative provision, the vacation of a street is such injury to abutting lot owners for which they can recover compensation against the municipality, is a question upon which the authorities are divided. 37 Cyc. p. 192; 15 Am. Eng. Encyc. of Law (2d Ed.) p. 402.
The question has never been directly determined in this jurisdiction; but the right to recover against the city is assumed in the reasoning of the court in Blackwell, Enid S.W.Ry. Co. v. Gist,
It follows that the judgment of the trial court should be reversed, and the cause remanded.
TURNER, C. J., and DUNN and KANE, JJ., concur; WILLIAMS, J., not participating. *41