186 P.2d 556 | Wyo. | 1947
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Without a map of the city or personal knowledge it would be difficult to understand the detailed facts herein, so we shall give but a brief outline of the evidence presented. Cheyenne, the capitol of the state, has a population of about 35,000. Central Avenue, running north and south, divides the city between east and west. It is an extension of Yellowstone Highway, which enters the city from the north. The city is about 39 blocks long, from north to south, each block being about 300 feet in length, intersected by streets running east and west, the streets being numbered from the south of the city to the north, so that 1st street is in the south portion of the city and 31st street near Pershing Boulevard in the north. The streets, eight in number, running east and west, which are north of Pershing Boulevard (which also runs easterly and westerly) are also called avenues. 16th street is an extension of Lincoln Highway, which enters the city from the east and west. When Central Avenue comes to 16th street from the north it is closed off by, and comes to a dead end at, the depot of the Colorado and Southern railroad and by its tracks, by the depot of the Greyhound bus lines and by the Union Pacific Railroad Company's depot and its tracks. These depots and tracks and the shops of the latter company occupy the space of several blocks, namely from 15th street to about 9th street. The north end of Central Avenue, however, and the south end thereof are connected by a viaduct and approaches thereto. To reach the viaduct from Central Avenue at 16th street it would be necessary to travel one block east or one block west, then turn south about one-half block to reach the approaches to the viaduct, each approach *86 running east and west, and being about one block long. The main viaduct runs north and south and apparently connects with the south portion of Central Avenue between 9th and 10th streets. It will, accordingly, be noted that to go over the viaduct is by a round about way. For a distance of 3 block north from 16th street, Central Avenue is abutted by business blocks and two churches. The remaining abutting property is occupied mainly by residences, but passes along two schools, including Junior High School. Two more schools, including the Senior High School, are one block east of Central Avenue. Between 22nd street and 25th street are located the state capitol and the supreme court building.
The east end of Pershing Boulevard or the extension thereof is located nearly two and one-half miles east of Central Avenue, branching off at that place from the Lincoln Highway, runs westerly and runs to Snyder Avenue several blocks west of Central Avenue. The adjacent area on the north for most of the distance is sparsely occupied by residences except three blocks east of Central Avenue. From that point on west to Snyder Avenue it is occupied mainly by residences.
8th Avenue runs east and west. It is eight blocks north of Pershing Boulevard. It is the most northerly street in the city. The area north is occupied by parks, the area south is occupied by but few residences, including the residences of three of the plaintiffs. These were constructed within the last few years.
Snyder Avenue runs north and south, connecting with 8th Avenue on the north and 16th street on the south. It is six blocks west of Central Avenue. The area north from 24th street is occupied by residences, south from 24th street is occupied mainly by warehouses. Three schools are in the neighborhood of the street, one located one block west and two schools two *87 blocks east of the street. The area north of 24th street is zoned to a very large extent, and is restricted as to the kind of buildings to be erected thereon and the cost thereof.
The main portion of the business section of the city is located between 15th street on the south, 19th street on the north and two blocks east and a number of blocks west of Central Avenue.
On March 11, 1946, the mayor and commissioners of the City of Cheyenne adopted Ordinance No. 750, providing as to what streets commercial motor carriers passing through the city should take. In other words, the ordinance provided a through truck route. The term commercial motor carriers was defined as any truck or trailer or combination thereof, carrying or constructed to carry cargo other than personnel, and having a rated load capacity of one ton or more. It provided that the north and south bound traffic should pass along (counting from the North) 8th Avenue west of Central Avenue to Snyder Avenue, south along Snyder Avenue to 16th street, west about one block and then south on Deming Drive, which crosses the railroads by two subways, and then goes southeasterly, finally connecting with Central Avenue some blocks south of the viaduct heretofore mentioned. It further provided that the east and west traffic (counting from the East) should pass along Pershing Boulevard to Snyder Avenue, then south to 16th street, and west from that point on 16th street and the extension thereof on Lincoln Highway.
The ordinance appears to have been adopted pursuant to demand on the part of a Cheyenne newspaper, a number of truckers and others, and after a reasonably careful survey made by some of the city authorities. The greatest traffic congestion appears to have been in the business district, and particularly on 16th street *88 between Central Avenue and Carey Avenue, two blocks west. It was shown that the approaches to the viaduct became slippery in the winter time; that too much traffic, and in fact all truck traffic over it was dangerous, particularly on account of possible accidents thereon and the calamity which might ensue by reason of explosion of gasoline thereon, hauled in trucks, the viaduct passing above the many tracks of the Union Pacific Railroad Company. Traffic conditions on Central Avenue and 16th street were considered dangerous, particularly on account of large commercial trucks traveling thereon. The witness Moore, Lieutenant in the Police Department, testified that 1,010 motor vehicle accidents occurred in the city in 1945, 210 of these were truck accidents; there were 113 accidents on Lincoln Highway, including 16th street; on Central Avenue there were 122 accidents; on the viaduct 34 accidents. The heaviest accidents were in the down town area. The witness Sherard, an employee of the Highway Department, had a survey made during a week in May, 1946, of the number of motor vehicles passing certain points. 8161 vehicles on the average per day passed along 16th street; 7401 at a point between the viaduct and 16th street. A survey of trucks was made in April, 1946, by the chief of police of the city, presumably of the number of trucks passing along the through truck route established, but that is not altogether clear. However, the indications would seem to be that in the neighborhood of 125 trucks per day pass along 8th and Snyder Avenues. Commissioner Trout testified that the routes adopted by the ordinance for through truck traffic are the safest because of the width of the streets, the vision and traffic thereon; that traffic thereon, after the adoption of the truck traffic route, is no heavier than on most of the other streets, and he named Evans, Warren, Central, Carey, Randall Boulevard and Thomes. He *89 estimated that about 100 trucks would pass along Snyder Avenue per day. The witness Riley, safety engineer of highway traffic for 13 years, testified that he investigated the traffic conditions in Cheyenne at the instance of the Colorado Motor Carriers Association. He found the traffic conditions before the adoption of the ordinance to be congested and dangerous. He found the through truck routes to be the proper routes to be adopted, and recommended that these routes be accepted by the Colorado Motor Carriers Association. The testimony of the witness Grishaber, Secretary-Manager of the Wyoming Truckers Association, was similar in effect.
Plaintiffs sue herein as abutting owners of property along the routes established for commercial through trucks. They claim that the establishment of these routes along 8th Avenue, Snyder Avenue, to about 24th street, and along Pershing Boulevard is oppressive; that much of the area is residential and zoned as to the kind of buildings to be erected thereon and the cost thereof; that the establishment of these truck routes is unreasonable; that they destroy the values of their property without compensation; that they endanger the safety, life and limb of plaintiffs and their families, especially their children; that the noise, fumes, refuse, dirt and pollution will create a public and private nuisance, and a dangerous, unsanitary condition, and cause annoyance and mental anguish. Testimony tending to support these allegations was introduced, although there was little, if any, to show any injury to health. Other facts will be mentioned hereafter in connection with the discussion of the points of law raised herein. Counsel for plaintiffs has argued 16 different points. We shall not attempt to discuss these points categorically, nor shall we attempt to examine separately the numerous authorities which are cited in the briefs of counsel. *90
I. We have no reason to doubt that the ordinance in question imposes the inconveniences and annoyances upon the plaintiffs, as testified by them, showing that the scientific advancements of the present age are not an unmixed blessing. The hardest hit appear to be those who reside along 8th Avenue and Snyder Avenue north of 23rd street, and we have no doubt that if the members of this court were situated likewise, we should attempt to be relieved therefrom, if possible. However, the regulation of municipal affairs is vested in the Legislature and in municipal officers, pursuant to a delegation of powers. This court has not been granted any such power, nor, for that matter, would the exercise of such power by the courts be consistent with the spirit of local self-government, or with the division of governmental power into executive, legislative and judicial. The extent of the power of the courts in connection with municipal affairs is to see that the powers existing under or granted by the Constitution and the laws are not transcended.
II. Reasonableness of the Method Adopted.
It does not seem to be disputed that the traffic condition in Cheyenne was such that it was necessary to find some method to relieve it. The evidence shows that the city authorities deliberated a considerable time as to the best method to do so. They did not act arbitrarily unless it be that they chose the particular method which they did. The means adopted by the ordinance in question has a real, substantial and logical relation to the object sought to be accomplished, and is an effectual means to alleviate or remedy at least part of the evil of congested traffic in the city. The cases cited by counsel on this point do not sustain his contention to the contrary. He insists that the means adopted is illegal in that the city authorities should have compelled the railroad companies to construct under-passes *91 or over-passes, and not to do so, but to choose the method adopted, is an unlawful discrimination against plaintiffs. A great deal of stress is laid by counsel for plaintiffs on this point. The witness Pickett suggested that a crossing over the Union Pacific Railroad Company tracks east of the city, but outside of the limits thereof, might be used more advantageously for the east and west traffic, and the suggestion appears to have considerable merit. He stated that the railroad company did not consider the use of such crossing feasible, and being outside of the limits of the city we need not consider it further. The same may be said in connection with his suggestion that Hynds Boulevard on the west of the city could be used to relieve the congestion of the north and south traffic, since that, too, or a good part thereof, seems to be outside of the limits of the city. The Mayor of the city testified that an under-pass or over-pass at a street east of Central Avenue might, or would solve the north and south traffic. We are inclined to agree with the contention of counsel for the city that such under-pass or over-pass would solve that traffic only partially. We need not discuss the details thereof. The Mayor also testified that he had not considered such under-pass or over-pass; that it would cost several million dollars, and that it would be absurd to consider such a method. The witness Trout stated that it would take five years to construct it. The plaintiffs offered no evidence as to the cost or as to the time required to construct it. Judging from the map in evidence an under-pass or an over-pass at any point within nine blocks east of Central Avenue would be of about the same length, and in the neighborhood probably of about 2000 feet. There is, of course, no doubt that an under-pass or over-pass would cost a considerable amount of money and take considerable time to construct. Counsel for the plaintiffs also contend that a railroad company may be compelled *92 to construct such a pass or passes without contribution from anyone. Counsel for the city contend that under the provisions of Sec. 64-214, Wyoming Compiled Statutes of 1945, the city might be compelled to bear a considerable portion of the expense. We need not consider that. In many, if not most instances, congested traffic may be relieved by two or more methods. There is bound to be in such a case a discrimination against some party or parties in choosing a particular method. Hence, the mere fact of discrimination cannot be held to be a criterion of illegality. If it is necessary in a case of congested traffic for the courts to carefully scrutinize as to what is the best available method to relieve it, that would be equivalent to depriving city authorities of all discretion, and would substitute the courts as administrators of municipal affairs in that respect. But that is not the law. It is not the province of the judiciary to set up its judgment against that of the city authorities as to the method or means adopted toward the accomplishment of a legitimate object unless clearly unreasonable. The method adopted need not necessarily be the best. State ex rel. vs. City of Laramie, et al.,"In considering the reasonableness of the ordinance in question, passed under the delegated police power of the state, the court will apply to its provisions the tests which are applicable in determining the validity and constitutionality of a statute having a like purpose. When called upon, courts will scrutinize legislation purporting to be enacted for the public welfare to see if the object sought calls for the exercise of the police power. If such object can fairly be said to be a regulation to promote the safety, health, morals, comfort or convenience of the community, then courts will not interfere with the wide scope of legislative discretion in determining the policy to be employed in its exercise, unless it appears that the discretion has been abused and the legislative action is so clearly unreasonable and arbitrary as to be oppressive."
In People's Rapid Transit Co. vs. Atlantic City,
"It is settled in this state that the regulation of motor vehicles on particular streets, even to their complete exclusion therefrom, when deemed necessary in the public interest, is within the police power delegated to municipalities. West v. Asbury Park,
Numerous other authorities state the general principle here mentioned. See 3 McQuillin Municipal Corporations, 2d Ed., Sec. 951; 37 Am. Jur. 807, et seq.; Dec. Dig., Municipal Corporations, Secs. 63 and 703; 44 C.J. 931.
The case before us presents no exception to these rules, although counsel for the plaintiffs seems to think so. We cannot be asked to hold that when a railroad company can relieve congested traffic in part or in whole, by the construction of a viaduct or subway, that then the municipalities must, as a matter of law, compel it to construct it, and that, too, without regard to the cost thereof, instead of adopting a method which might inconvenience or trouble other property owners. Counsel's theory is that the tracks of the railroad company in the case at bar are a nuisance. That is a strong statement to make in view of the history of Cheyenne. Compare that theory with the statement in 46 C.J. 719, where it is stated: "The operation of a railroad or street railroad, constructed under due authority of law, is not, as a general rule, by reason of the objectionable features necessarily incident thereto, a nuisance in the absence of any negligence or abuse in the manner of its operation, although it may be located along a public street, or pass through a populous village or city." There appears to be at least some wisdom in the testimony of the witness Trout when he stated that "the railroad was there first." It is not shown that any of the streets which come to a dead end at the railroad tracks were ever laid out across the space occupied by the railroads. The Union Pacific Railroad Company has had its tracks, or part of them, where they are now for three-fourths of a century or more. Moreover, none of the numerous authorities cited by counsel for the plaintiffs, including a long excerpt from 44 Am. Jur. 511, et seq., are to the effect that the city authorities are compelled, as a matter of law, to lay out and establish *95
any streets, under-passes or over-passes across such tracks, but the power, if it exists, is permissive, not compulory, and the same discretion would seem to exist in such cases as in others. In Erie Railroad Company vs. Board of Public Utility Commissioners,
Nor are we able to say that the ordinance is unreasonable because other streets were not chosen or because the traffic by trucks was not left where it was previously. The testimony, for instance, shows that the traffic on Central Avenue before the adoption of the ordinance in question was from twenty to thirty times the traffic on Snyder Avenue, and that the traffic on the former avenue was as great at the time of the trial of this case, after the trucks had been diverted, as the traffic on the latter avenue. Moreover, it seems that in connection with the foregoing matters the rights or absence of rights which plaintiffs have in the streets on which their property abuts should be considered. That matter will be discussed later in this opinion.
Counsel for plaintiffs on oral argument strenuously urged that the ordinance makes an unlawful discrimination between truckers of commercial motor vehicles, and commercial busses hauling passengers, in that the former are forbidden to cross the viaduct, while the latter may do so, even though the weight of the latter may be greater than that of the former. Disregarding the question as to whether plaintiffs are the proper parties to raise the point, we think that there is a sufficient basis for classification. The destination of passengers *96
on busses is ordinarily the business center of the city, while that of the commercial vehicles which merely pass through the city is not. To deny the privilege of going over the viaduct to these busses would mean that they would have to pass over some of the streets, the congestion of which is sought to be relieved. Furthermore the testimony of the witness Grishaber shows that passenger busses can turn in less space than the average truck, and that is of some importance in view of the corners to be turned in connection with the viaduct. We stated in Kenosha Auto Transport Corp. vs. City of Cheyenne,
III. Power of City to Enact the Ordinance.
A. The assertion of counsel for plaintiffs is correct that the only powers possessed by municipalities are those delegated to them. Stewart et al. vs. City of Cheyenne,Sec. 29-3418, Wyo. Compiled Statutes of 1945, which is part of the original charter of the City of Cheyenne gives the city the power "to regulate, prevent and punish the riding, driving or passing of horses, mules, oxen, cattle or other teams, or any vehicle drawn thereby, over, upon or across the sidewalks, or along any streets of the city." In Western Auto Transports, Inc. vs. City of Cheyenne, infra, we referred to the limited power which the city had by reason of this provision. It relates to the driving of vehicles on the streets of the city which were drawn by animals. It is somewhat strange that half a century after the advent of the automobile we should still find an unmodified statute revolving round horse-drawn, mule-drawn or oxen-drawn vehicles, which, practically speaking, no longer exist except partially as an exhibit at the "Frontier Show". But so it is. Counsel for the city contend that the provision should be construed as including motor vehicles. It would seem that this contention must be upheld under the rule of Pellish Bros. vs. Cooper,
Counsel for the plaintiffs relies, among other cases, upon Western Auto Transports, Inc. vs. Cheyenne,
"The ordinance in question, in our judgment, has gone no further than to extend the exercise of the police power to the mere question of regulation, of licensing motorbusses, and prescribing their use over certain routes of the city, and restricting their use upon certain other streets of the city, as well as regulating their *105 parking and loading and unloading within the limits of the city, in the interest of the public safety.
"If a power of regulation of this character were not to be accorded to the municipality, it would be difficult to apprehend by what modus operandi intelligently exercised the public safety would be properly conserved; and, within reasonable limitations in its exercise, such a power has generally been conceded to all municipalities."
In view of the foregoing authorities we see no escape from the conclusion that the ordinance in question here was a regulation and not a prohibition, and that the City of Cheyenne had ample power to enact the ordinance, unless it be for other matters argued by counsel for the plaintiffs, which we shall now proceed to examine.
B. We are not prepared to assent to the contention of counsel for plaintiffs that a municipality can in no event legislate in regard to through truck traffic, because of the fact that such through traffic routes are matters of state wide concern. Counsel has cited us to no cases so holding. We are not at all certain that the legislature of this state would agree with counsel. The condition making a through traffic route necessary in this case is one peculiar to Cheyenne. We know of no other cities in this State situated similarly, and the legislature might take the position that such requirement is distinctly local, one that should be met by the local authorities. If it is true, as counsel assert, that through traffic truck routes usually by pass municipalities — in other words, that states usually create such routes — then, in view of the peculiar conditions existing in Cheyenne, the state should create such through traffic routes that will by-pass that city. Judging from the evidence in this case the city authorities of Cheyenne would welcome such a solution. Unfortunately, in so far as this particular matter is concerned the *106 reservation of Fort Francis E. Warren which borders the City of Cheyenne on the west, seems to present some obstacles to creating a through truck route on that side of the City. If the City had the power and the means and territory to create a through truck route outside of the city limits, plaintiffs would have a much better standing in a court of equity than they have in the present situation.
C. Counsel also contends that the ordinance is invalid because the city has denied the use of its streets to public carriers who have been licensed by the state. We do not think so. The power exercised is that of regulation, not of prohibition. These carriers are not faced by the onerous situation mentioned in Western Auto Transports, Inc. vs. City of Cheyenne, supra. In fact, the record shows that many of these carriers are in favor of the ordinance adopted by the city. If the licenses issued by the state had, pursuant to law, contained specified routes which the carriers were to follow, the situation would be different. See annotation 66 A.L.R. 847.
D. Counsel for plaintiffs maintains that the power claimed by the city in this case is prohibited by the provisions of Sec. 60-133, Wyoming Compiled Statutes of 1945, passed in 1921. A similar section was contained in Section 14 Cow. 79 Session Laws of 1917. The section is as follows:
"Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring any owner, dealer or manufacturer to whom this Act (§§ 60-101 — 60-140) is applicable, to pay any fee or license for the use of the public highways, or excluding any such owner, dealer or manufacturer from the free use of such public highways, excepting such driveways, speedways or roads as have been expressly set apart by law for the exclusive use of horses and light carriages, or in any other way regulating the operation of motor *107 vehicles or their speed upon or use of the public highways; and no ordinance, rule or regulation inconsistent with the provisions of this act now in force, or hereafter enacted, shall have any effect. Municipal corporations or other local authorities may, within their legal corporate limits, regulate the operation of vehicles offered for hire, or forming a part of processions, assemblages, or parades on public highways or public grounds; and may close for a reasonable time a specified highway for speed contests or races, with proper safety restrictions and regulations; and may exclude motor vehicles from any cemetery or burial ground; and may exclude motor vehicles used solely for commercial purposes from any park or part of a park system; and may regulate the speed of motor vehicles, but not to a speed less than twenty (20) miles per hour, except at street or alley intersections or other places of probable congestion or danger; and may regulate the places for, and manner of parking motor vehicles."
The case of Kenosha Auto Transport Corporation vs. City of Cheyenne,
One provision in the foregoing statute, though perhaps obscure, which has troubled us no little, but which is argued by none of the counsel herein, at least not specifically, seems to be — eliminating all unnecessary verbiage — as follows: "Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation * * * in any * * * way regulating the * * * use of the public highways." That provision, if accepted literally, would, of course, invalidate the ordinance in question, since the power to enact it is not provided for in our statutes so as to come within the exception clause. The statute further excepts certain streets set aside for *109
horse-drawn vehicles by "law". That, of course, is an anachronism, throwing more or less suspicion on the whole section. This provision, if not the whole statute, seems to be the work of a thoughtless copyist. It is hardly credible that a state law would, even if it could constitutionally, attempt to set apart certain streets in municipalities for horses and light carriages. Perhaps reference was intended to a local "law" — to a regulation. If so, and vehicles now in use were substituted in the clause for those no longer in use, in order to give any meaning to the provision, such interpretation, if permissible, would come close to permitting the regulation involved herein. Counsel for the city have called our attention to the fact that the statute, except the last two sentences, relating to speeding and parking, was copied almost verbatim from either an Iowa or a South Dakota statute. Nebraska in 1905 passed a statute which contained a part of these provisions. Christensen vs. Tate, 87 Nebr. 848, 128 N.W. 622. But these provisions seem to have disappeared from the Nebraska statutes of 1911. The Iowa statute was passed in 1911. Chapter 72, Session Laws of 1911. It was repealed in 1917. Chapter 275, Sec. 28 of the Session Laws of that year. In South Dakota the statute copying the Iowa statute verbatim was passed in 1913. See Sec. 8658, South Dakota Revised Code 1919. It was repealed by Sec. 72 Chapter 251 of the Session Laws of 1929. It is not unlikely, therefore, that our statute was copied from the statute of South Dakota. We mentioned the statute in Western Auto Transports, Inc. vs. City of Cheyenne, supra, but did not construe it. The cautious reference thereto in that case indicates that we had some doubt as to the meaning of it. The Iowa statute, which did not contain any provision as to the parking of motor vehicles, was construed in 1916 by the supreme court of that state in Pugh vs. City of Des Moines,
The fact stands out prominently that the ordinances in both of the foregoing cases were clearly a regulation of the use of the highways, just as much so as the ordinance in the case at bar, yet in both of these cases the ordinances and the charter powers of the municipalities were upheld. The courts, accordingly, distinctly and unequivocally ignored, rejected and repudiated the literal meaning of the statute, as though the provision herein specifically considered were not in the *111 statute at all. The reason is conjectural. It may be found, perhaps, in the most significant statement of the South Dakota court, added to the foregoing quotation, as follows: "We are of the opinion that these clauses did aim to prevent municipalities from singling out motor vehicles and legislating against them in particular." In other words, the court seems to have held that the main aim or at least one of the aims of the statute, was to give motor vehicles the same rights on the streets as were given to horse-drawn vehicles. It is, of course, almost absurd that we should be called on at this late date to refer to the relation of motor vehicles to horse-drawn vehicles, but our statute in that connection is the same as that of South Dakota. We have on our books what is now an ancient relic, and our interpretation must be in the light of that relic. The South Dakota case was decided soon after the enactment of its statute in question and when horse-drawn vehicles were still in common use. Hence, that court was in a much better position to know the intent and aim and purpose of the statute than we could possibly be. Probably at least partially because of the foregoing aim, the purposes of the statute and the controlling effect thereof were held to be limited in scope, and the literal meaning of the statute was, as already stated, rejected. The foregoing cases involved regulations under the charter powers of the cities; the regulations not specifically prohibited in the foregoing statute were held not to be in conflict. Doubtless the same ruling would have been made in other similar cases. In other words, the effect of the rulings seems to be that a charter power would not be held in conflict with the statute if not specifically prohibited in the statute. Whether that is the exact theory underlying the cases, or whether it is not, the unquestioned fact remains that the charter powers were held to remain in force and effect in the specific instances involved in these cases, and there is *112 no reason to think that a different ruling would have been made in analogous cases, and we think that the case at bar is one of the latter. The foregoing cases were decided before our statute was copied from South Dakota. It is, accordingly, not unreasonable to hold that it was adopted with the construction put upon it by the foregoing courts, especially the South Dakota court, in accordance with the rule stated in 59 C.J. 1065 to 1069. Moreover, in 1939, the legislature gave specific authority to municipalities to establish through streets. Sec. 60-527, Wyo. Compiled Statutes of 1945. That power doubtless includes the power to establish through streets mainly for the use by commercial through trucks, since the genus necessarily includes every species. While the compulsory use thereof presents, perhaps, another question, the establishment thereof in any event cannot be attacked as illegal. Taking into consideration all that has been said on this point, we think we are constrained to say, though not without some misgivings, that Sec. 60-133, supra, cannot be held to forbid the enactment of the ordinance in question. Other reasons are urged on that point, but this opinion is already long as it is, and we shall not refer to them.
IV. Plaintiffs lack right to question ordinance.
If, however, we are wrong in the foregoing conclusion, still the result herein would not be different, in view of the fact that we should, we think, sustain the contention of the city that the plaintiffs are not the proper parties to attack the validity of the ordinance in question; that is to say they have no cause of action, because none of their legal rights have been invaded or abridged. Plaintiffs are not here complaining as drivers of trucks, but as owners of property abutting the truck routes established by the ordinance. Courts seem to be agreed that in order that an injunction may be *113 issued it must be shown that the plaintiff is injured in his personal or property rights. High on Injunctions, 4th Ed., Sec. 9; 43 C.J.S. 430, 635; McQuillin Municipal Corporations, 2d Ed., Sec. 846. It is said by McQuillin in Sec. 851 that "Injunction will not lie to enjoin the enforcement of an ordinance on the ground alone that it is void. He who seeks to restrain its enforcement must allege and prove that his interests are affected by it." In the case of Ehrlich vs. Village of Wilmette,Counsel for plaintiffs calls the establishment of the traffic route by the ordinance vandalism, and that it has converted a residential area into bedlam. Still if the creation of a traffic route for commercial through trucks was necessary for the public welfare — and we cannot say that it was not — then the city authorities were required to use their discretion as to whether such evils should exist along the route selected or along some other route. We hardly think that this court is authorized to say that because the area where some of the plaintiffs live is zoned should be held to be decisive herein. Much of the area along Central Avenue, too, is zoned. Moreover, the fact that the area along other streets is not zoned but is residential in character, *114
would not make these evils any the less obnoxious to the residents along those streets, and surely counsel for plaintiffs cannot expect a court of equity to ignore the neighbors of plaintiffs who would suffer the evils of which plaintiffs complain if the contentions herein were upheld. The fact that a residential section is zoned ought, of course, be considered in establishing a through truck route, and in most instances would doubtless have controlling effect in the exercise by a municipality of its legislative discretion. Still the establishment of such zone does not, directly at least, infringe upon or control the use of the streets therein, so it would seem that the real question herein is as to what rights or control the plaintiffs have in or over the streets along which they live, the violation of which entitles them to bring this action. The streets, as the petition shows, have been dedicated to the public. The authorities are unanimous in holding that streets are dedicated or otherwise established primarily for the public who have a common right to the use thereof, and who may make such use thereof by all the usual modes of travel thereon, including by vehicles which advancing civilization may find convenient and proper. Abutting property owners have no greater rights therein and thereto than the public generally, except only that they have the additional right of ingress and egress and of a few other analogous rights such as light and air. Chicago, Burlington
Quincy Railroad Company vs. The West Chicago Street Railroad Company,
"It is bound to conduct its business with a reasonable regard under the circumstances for the rights of others. This does not, however, signify that every annoyance, inconvenience, or feature which might be regarded as objectionable, and to which damage might be traced, attending the construction or operation of a street railway furnishes the foundation of an action. "Certain unpleasant, inconvenient, and disturbing features, from the point of view of an adjoining owner, naturally attend public travel upon a highway, if there is any considerable amount of it. This is distinctly true of highway use by street cars, and the greater the public demand and service, the greater these features almost certainly are. Dust cannot well be kept down, and vibration and noise in some measure in inevitable. Such things as these and other annoyances and inconveniences which result from a user of a highway which is consistent with a legitimate and proper use of it as a *117 public thoroughfare are among the penalties which a modern and busy life imposes upon those who come closest in contact with it. A user of a highway by a street railway forms no exception. Certain objectionable results are among its natural incidents. In so far as this is the case, and the consequences complained of flow naturally and normally from the conduct of the traffic under proper authority, in a reasonable manner and with due regard for the rights of other, one who conceives that he has been injured can have no redress."
The case is cited with approval in Nuttle vs. Wichita R. Light Co.,
We should, finally, inquire whether an additional servitude has been imposed upon the streets by the ordinance in question to which the abutting property owners can object. The precise question is as to whether or not the artificial increase of travel thereon by trucks which may be caused by the ordinance, is such additional servitude. There is no direct authority on the point. This is the first case on record, so far as we know, in which abutting property owners have objected to a regulation similar to that in this case. Many analogous cases have held in the negative. It is almost universally held that the use of streets by street railways pursuant to a franchise is not an additional burden for which abutting property owners are entitled to compensation, and to which, accordingly they cannot object. Elliott, Roads and Streets, 4th Ed., Sec. 886; McQuillin, supra, Sec. 1843; see 44 C.J. 986. In Kipp vs. Davis-Daly Copper Company,
"But it is not important to inquire where the fee is vested. The respective rights of the abutting owner and the public are dependent upon the fact of dedication. In view of these provisions as well as of the rule of law recognized everywhere, the authorities which control streets and highways may use or permit the use of them in any manner or for any purpose which is reasonably incident to the appropriation of them to public travel and to the ordinary uses of streets or highways under the different conditions which arise from time to time. White v. Blanchard Bros.,
If abutting property owners cannot object in such a case, it is difficult to see how they can object in a case such as is before us. If there is any difference, it is merely one of degree, not of kind. There is one distinction. The rights or privileges of truckers to the use of streets are greater than those of the operators of a street railway. The latter need a franchise, the former do not. The difference in effect, if any, would *119 be to strengthen our conclusion herein, rather than to weaken it.
The judgment of the trial court is, accordingly, affirmed.
RINER, C.J., and KIMBALL, J., concur. *120