190 P. 299 | Or. | 1920
“But there is a limitation to legislative or municipal power over a street, which cannot be exceeded without invading the constitutional rights of abutting owners. An abutting proprietor is entitled to the use the street in front of his premises to its full width a means of ingress and egress, and for light and air, and this right is as much property as the soil within the boundaries of his lot; and therefore any impairment thereof or interference therewith, caused the use of the street for other than legitimate street purposes, is a taking within the meaning of Constitution, whether the fee of the street is in abutting owner or not.”
A similar doctrine was announced in Sandstrom v. Oregon-Wash. R. & N. Co., 75 Or. 159 (146 Pac. 803), where the defendant had fenced off a street which ran in front of the plaintiff’s premises and made a deep and impassable cut across the street, although immediately opposite the holding of the plaintiff. Likewise, in loose v. Willamette Valley Southern Ry. Co., 77 Or. 157 (150 Pac. 252), where the defendant proposed to build a high trestle along the street in front of the plaintiff’s premises, the principle was laid down that the right of the plaintiff in the street could not be interfered with in the absence of condemnation proceedings. The doctrine is discussed also in Kurtz v. Southern Pacific Co., 80 Or. 213 (155 Pac. 367, 156 Pac. 794), where the defendant undertook to lay a railway track immediately in front of the plaintiff’s premises without his consent. A similar principle is announced in Johnson v. Jeldness, 85 Or. 657 (167 Pac. 798, L. R. A. 1918A, 1074). See, also, Sloss-Sheffield S. & I. Co. v. Johnson, 147 Ala. 384 (41 South. 907, 119 Am. St. Rep. 89, 11 Ann. Cas. 285, 8 L. R. A. (N. S.) 226, and note).
In several of these cases the defendants were public service corporations entitled to exercise the right of eminent domain, under which, after having had his day in court and an opportunity to be heard, the