Brand v. Multnomah County

Lead Opinion

Mr. Chief Justice Wolverton,

after making the foregoing statement of the facts, delivered the opinion.

1. Primarily, the state has paramount control over all the highways within its borders, including public streets and highways within the confines of municipalities. Whatever authority a municipality may enjoy or possess, pertaining to its streets and highways, must be derived from the legislative assembly through its franchise or charter; and such a corporation acts, if at all, through a delegated power emanating from the initial source: 2 Dillon, Munic. Corp. (4 ed.), §§ 680, 683; Winters v. George, 21 Or. 251, 259 (27 Pac. 1041); Simon v. Northup, 27 Or. 487, 501 (40 Pac. 560, 30 L. R. A. 171). Nor does the mere fact that the state has delegated certain powers to the municipality inhibit it from again resuming or exercising such powers. Hence it is said: “The legislature of the state represents the public at large, and has, in the absence of special constitutional restraint, and subject (according to the weight of more recent judicial opinion) to the property rights and easements of the abutting owner, full and paramount authority over all public ways arid public places” : 2 Dillon, Munic. Corp. (4 ed.), § 656. The logical and cogent result of these principles is that the state, as well as the cities and towns to which it has previously delegated the requisite authority, may fix and establish the grade of the streets and public highways within the corporate limits of such municipalities.

2. Whatever right the municipality may acquire in and about its public streets — whether through dedication or by condemnatory proceedings, or whatever may be the property interests which remain or are left vested in the owner of property abutting thereon, it has come to be settled, if ever it was seriously controverted, that they cannot be burdened with any additional servitude, other than that which properly and legitimately attaches to them as public streets and highways, without just compensation being made to the abutting lot owner: Willamette Iron Works v. Oregon Ry. & Nav. Co., 24 Or. 224 (46 Am. St. Rep. 620, 29 L. R. A. 88, 37 Pac. 1016); Huddleston v. City of Eugene, 34 Or. 343 (43 L. R. A. 444, 1 Munic. Corp. Cas. 3340, 55 Pac. 868); Barney v. Keokuk, 94 U. S. 324, 340.

3. The authorities are uniform to the purpose, however, that a municipality does not entail any liability for consequential damages resulting from the fixing or establishment of a street grade, unless specially required to respond by some constitutional, statutory, or charter provision: 2 Dillon, Munic. Corp. (4 ed.), § 686; Willamette Iron Works v. Oregon Ry. & Nav. Co., 26 Or. 224 (29 L. R. A. 88, 37 Pac. 1016, 46 Am. St. Rep. 620); Kelly v. Mayor of Baltimore, 65 Md. 171 (3 Atl. 594).

4. The authorized establishment of a street grade, although the change may result in consequential damages to the abutting property, is not a “taking,” within the meaning of the clause of our constitution (Const. Or. Art. I, § 18), providing that “private property shall not be taken for public use.” The doctrine is well illustrated by the case of Northern Transportation Co. v. Chicago, 99 U. S. 635, where the legal distinction is specifically drawn between the term “taken,” as used in the Constitution of the United States and the earlier state constitutions, and the phrase “taken or damaged,” in the later ones. It is there said: “Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking, within the meaning of the constitutional provision.” After the work complained of in that case had been substantially completed, the people of Illinois adopted another constitution, whereby it was ordained that private property should not be taken or damaged for public use without compensation; and, as thus adopted, it was held to be an enlargement of the common provision for the protection of private property. In a later case (Chicago v. Taylor, 125 U. S. 161, 166, 8 Sup. Ct. 820), which directly involved its construction, it was held that it “required compensation in all cases where it appeared that there had been some physical disturbance of a right, 'either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the .public generally.” It is apparent that the interpolation of the words “or damaged” constitutes an innovation upon the usual provision, and explains the divergent views of the courts on the subject, and this is a cogent re-enforcement of the doctrine as quite uniformly maintained and held to under the United States Constitution, and those state constitutions containing a like or similar provision in respect of the “taking” of private property for public use. Judge Cooley states the generally accepted rule as follows: “Any proper exercise of the powers of government which does not directly encroach upon the property of an individual, or disturb him in its possession or enjoyment, will not entitle him to compensation or give him a right of action”: Cooley, Const. Lim. (6 ed.), 666. The rule was directly applied by him, while upon the bench, in the case of City of Pontiac v. Carter, 32 Mich. 164, which was an action to recover damages for raising the grade of a public way, wherein he asserts that the weight of authority against the action is overwhelming, and sustains the assertion by a citation and review of a great number of cases. In further support of the rule, see Stewart v. City of Clinton, 79 Mo. 603; Kehrer v. Richmond City, 81 Va. 745; Skinner v. Hartford Bridge Co., 29 Conn. 523; Smith v. Corporation of Washington, 61 U. S. (20 How.) 135; In re Ridge St., 29 Pa. St. 391; Murphy v. City of Chicago, 29 Ill. 279 (81 Am. Dec. 307); Roberts v. City of Chicago, 26 Ill. 249. A bridge connecting public highways, and erected for the general use and accommodation of the public, whether built and maintained at public expense, or by a private corporation authorized to charge and collect tolls from persons using the sanie, is itself a public highway, and constitutes part of the highways with which it is connected: Pittsburg & W. E. Pass. Ry. v. Point Bridge Co., 165 Pa. St. 37 (30 Atl. 511, 26 L. R. A. 323).

5. In this connection it may be stated, as a general proposition, that, when a franchise or license to take tolls has expired, thereafter the right to- the free use of such bridge as a public highway becomes vested in the people: State ex rel. v. Lawrence Bridge Co., 22 Kan. 438.

6. We come now to an application of these principles to the facts which characterize this case. The legislature, in granting authority to1 construct the Madison Street Bridge, specialty prescribed that its western approach should conform to the grade of Front Street, and it was so constructed, in observance with the legislative will. The width of the bridge was not designated in the act, 'but the grant carried with it the authority to erect such a structure as would reasonably accommodate public travel across the river at that point; and no question is made that the structure is unnecessarily cumbersome, or occupies more space than is requisite to meet the demand. As constructed, it practically occupies Madison Street, from First Street to the river, and constitutes an elevated roadway above the original surface of the street; and the broad contention is that the bridge constitutes an additional servitude upon the street, which plaintiff is entitled to have abated, or the structure so modified from its present condition as to give plaintiff access to his waterfront buildings. We are of the opinion that the grant of authority to the bridge company to erect a bridge connecting the public highways theretofore terminating at the river banks, particularly specifying that the structure should conform at its western approach to the grade of Front Street, was, under the conditions prevailing, an establishment of the grade of that part of Madison Street to be occupied by-said approach. It has resulted in an entire diversion of public travel from the original surface of Madison Street to the highway constituted by the bridge structure.

7. In Wilkin v. City of St. Paul, 33 Minn. 181 (22 N. W. 249), the defendant entered into a contract with certain railroad companies which were maintaining tracks and operating railroads upon Third Street in said city, whereby the companies agreed to construct upon the southerly portion of the street, over the tracks, and 20 feet above the established grade, a roadway 24 feet wide, with projecting sidewalks increasing its width to 36 feet, leaving uncovered and unoccupied 30 feet of the street. It was further agreed that the companies should construct approaches leading up to the roadway of the bridge, and should close and keep closed for travel that part of the street lying along the bridge and not occupied thereby, so as to deflect such travel to the bridge. An injunction was granted, upon the suit of the owner of lots abutting upon that portion of the street to be occupied by the bridge structure, restraining the companies from carrying the contract into effect, upon the ground that it would result in a change of the grade of that part of the street occupied by the bridge; and upon appeal to the supreme court the injunction was sustained. It was held that the contemplated work was intended to, and would, raise the established grade 20 feet; that, in effect, it would make the grade of the bridge, and necessarily of the approaches to it, the traveled street grade.between the two ends of the work; and such grade not having been established, and compensation paid the abutter, as required by the city charter, the work was consequently restrained. The central idea upon which the case turned was that the purpose of the authorities was to bring about an actual change of grade, and that such would be the effect, in practical operation, if the contract was carried out, and, such being its effect, the change could not be legally accomplished in that manner.

In another case (Selden v. City of Jacksonville, 28 Fla. 558, 14 L. R. A. 370, 10 South. 457, 29 Am. St. Rep. 278), a suit was instituted to enjoin the construction of a viaduct over and above numerous railroad crossings upon a public street by four railway companies under an agreement with the county and city, and to make the surface of the viaduct, instead of the original surface of the occupied street, the grade for public use and travel. It was held that the construction of the viaduct would effectuate a change of grade, and the suit having proceeded upon the theory that the municipal government of Jacksonville was erecting the structure, not as a joint party with the other parties to the agreement, but in the due exercise of its charter powers to change the grade of streets, though under agreement with the several parties named as co-defendants, by which they were to contribute to the expenses, it was concluded that the viaduct would not become or constitute an additional servitude upon the street, for which compensation should be recovered. So, in Willets Mfg. Co. v. Board of Chosen Freeholders of Mercer Co., 62 N. J. Law, 95 (40 Atl. 782), it was held that, a bridge having been constructed for the purpose of joining together the two parts of the highway bisected by a waterway, the approaches thereto became a part of the highway, and that they constituted no additional burden thereupon. In that case the City of Trenton had, by proper proceeding's taken for the purpose, acquired the right to use the locus in quo for the purpose of the public highway. These cases, while not to the exact purpose, serve to indicate very clearly what acts would be considered or would constitute an actual change of grade; so that, if the legislative assembly has employed language in connection with the subject-matter calculated to induce the doing of such acts, we must conclude thát it intended to establish the grade, and to require the change, in pursuance of the exercise of the franchise granted. The language of the act is that said approach “shall conform to the grade of Front Street.” The bridge itself was to become a highway, and the approaches constitute a part of it. The legislative purpose was to divert the public travel upon the bridge — the newly-constituted highway — which wras to occupy, so far as the western approach is concerned, that portion of Madison Street extending from Front Street to the river. So the conclusion is inevitable that the legislative will was also- to establish the grade in conformity with Front Street when it required the structure to conform to the grade of that street, and such is the legitimate effect of the act.

It is stoutly contended that the case of Willamette Iron Works v. Oregon Ry. & Nav. Co., 26 Or. 224 (46 Am. St. Rep. 620, 29 L. R. A. 88, 37 Pac. 1016), ought to be, and is, controlling, to the purpose that the Madison Street approach constitutes an additional servitude. But there is a radical distinction between-the two cases. In that case the approach was constructed without pretense of a grant of authority to change the grade of the street; nor did it, or the bridge to which it was joined, form any part of, or an extension of, any public highway. Not so with the case at bar. The bridge and the approaches, as we have seen, form and constitute a part of the public highway, meeting and joining public streets or highways, extending to the river at each end thereof, giving continuous travel from and upon said streets upon and across the bridge; and the approach complained of, being constructed upon the authorized grade of Madison Street, constitutes the established grade thereof, supplanting the Madison Street surface, as used and occupied prior to its construction. It is true that, in the construction of the bridge by the Columbia Street Bridge Company, it left the roadway open through the approach on Madison Street leading to- plaintiff’s water-front buildings; but it is apparent from what we have said that it was not required to do so, being authorized, in a practical sense, to raise the surface grade of the street by means of the approach. The leaving of the roadway was but a matter of accommodation, to meet the convenience of the property interests on the river bank, subject to be closed at the behest of the bridge company. The Bridge Committee succeeded to all the powers and authority granted to the bridge company under the franchise, and, among others, the right and authority to close up the roadway leading to the water front, and thus make the bridge approach a solid structure throughout its entire width. , The fact that permission was asked of the City of Portland, and granted, upon the condition that the commission restore the roadway if not satisfactory to property owners, does not alter the case. There was no attempt by the city to alter the grade of the street; nor could it, if it had so desired, accomplish such a purpose in that manner. The only purpose was to give its consent in so far as it had any control in the premises, to the Bridge Committee to act; the committee being, in a substantial sense, the agent of the city. Subsequently, however, the city became the owner of the bridge and franchise, and, the county -having assumed the operation thereof, insists that' the roadway shall be kept closed; so that the bridge company having been granted the authority in the first instance to raise the surface grade of the street by means of the solid approach to the bridge, and the present authorities having succeeded to the franchise, it follows that they have the right to so maintain it. This view of the case is strengthened by reason of the fact that the bridge company has surrendered its franchise and right to take tolls, so that, in practical operation, its free use has become vested in the public; thus disendowing it of the only remaining characteristic of a private concern, and putting it upon the broad basis of a public highway, to all intents and purposes.

For appellant there was an additional brief by Mr. William D. Fenton. For respondents there was an additional brief by Mr. Joel M. Long, City Attorney.

We have not attempted to distinguish this case as one affecting riparian rights, as the rules and principles we have applied are alike applicable, whether the change of grade is of a street extending to the water’s edge or otherwise, and the result will be the same in either case. These considerations affirm the decree of the court below, and it is so ordered.

Affirmed.

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Rehearing

Decided 17 September, 1900.

On Rehearing.

Mr. Chief Justice Wolverton

delivered the opinion.

8. A careful re-examination of the vital questions attending this controversy has brought us to the same conclusion expressed in the former opinion. The pivotal issue is whether the bridge, with its approach upon Madison Street, constitutes an additional servitude, or has perverted the street to other than legitimate street purposes. If such is its effect, the plaintiff presents a substantial basis for a decree in accordance with the prayer of his complaint; otherwise not. There is but little, if any, conflict in the law, which is aptly and succinctly stated, with its proper limitations and distinctions, in Willis v. Winona City, 59 Minn. 27 (60 N. W. 814, 26 L. R. A. 142). In that case the city, under authority of the state and national legislatures, constructed a bridge across the Mississippi River, the approach of which extended a considerable distance along the center of one of the streets of the city, and past the plaintiff’s property, and the question arose whether it constituted an additional servitude, in determining which Mr. Justice Mitchell says: “The doctrine of the courts everywhere, both in England and in this country (unless Ohio and Kentucky are exceptions), is that, so long as there is no application of the street to purposes other than those of a highway, any establishment or change of grade made lawfully, and not negligently performed, does not impose an additional servitude upon the street, and hence is not within the constitutional inhibition against taking private property without compensation, and is not the basis for an action for damages, unless there be an express statute to that effect. That this is the rule, and that the facts of this case fall within it, is too well established by the decisions of this court to require the citation of authorities from other jurisdictions: Lee v. City of Minneapolis, 22 Minn. 13; Alden v. City of Minneapolis, 24 Minn. 254; Henderson v. City of Minneapolis, 32 Minn. 319 (20 N. W. 322); Yanish v. City of St. Paul, 50 Minn. 518 (52 N. W. 925). See, also, Northern Transportation Co. v. City of Chicago, 99 U. S. 635; Selden v. City of Jacksonville, 28 Fla. 558 (10 South. 457, 14 L. R. A. 370, 29 Am. St. Rep. 278). The New York elevated railway cases cited by plaintiff are not authority in his favor, for they recognize and affirm the very doctrine that we have laid down in Story v. New York Elev. Ry. Co., 90 N. Y. 122 (43 Am. Rep. 146), but hold that the construction and maintenance on the street of an elevated railroad operated by steam, and which was not open to the public for the purpose of travel and traffic, was a perversion of the street from street uses, and imposed upon it an additional servitude which entitled abutting owners to damages. Neither does Adams v. Chicago B. & N. R. R. Co., 39 Minn. 286 (12 Am. St. Rep. 644, 39 N. W. 629, 1 L. R. A. 493), aid the plaintiff, for that case proceeds upon the proposition that the construction and maintenance of an ordinary commercial railway upon a street is the imposition of an additional servitude. Plaintiff also cites numerous cases as to what constitutes a ‘taking’ of private property. The law of those cases is unquestioned. There is no doubt that the acts of the city would amount to a taking of plaintiff’s property, so as to entitle him to compensation, provided the use made of the street by the city imposed an additional servitude upon it; but that is the very question in the case. Our conclusion is that the construction and maintenance of this bridge approach did not impose an additional servitude upon the street, but was a proper street use, and hence constitutes no basis for an action in favor of plaintiff for damages.”

This case affords a complete answer to the counsel’s contention that there is a “taking” in the present instance, within the purview of the state and national constitutions, and, as the reasoning- of the learned justice is so apt for our present purposes, we have taken the liberty to quote at much length from the opinion. The doctrine of the New York elevated railway cases and of Adams v. Chicago B. & N. R. R. Co., 39 Minn. 286 (1 L. R. A. 493, 39 N. W. 629, 12 Am. St. Rep. 644), is not questioned, but it is not applicable to this controversy. In those cases there was an additional servitude created — in the former, by the construction of the elevated railway; and, in the latter, by an ordinary commercial railroad upon the streets. Other New York cases present apt illustrations of the distinction which obtains between the legal effect of a structure which constitutes an additional servitude and one which is effective merely in producing a change in the street grade. They hold that the construction of an ordinary railroad upon a street is an additional burden or servitude, for which compensation may be recovered, yet that the change of a grade upon lateral streets, made necessary to effectuate a convenient crossing of the railroad, does not constitute a burden for which the abutter is entitled to compensation: Rand, Em. Dom., § 399; Uline v. New York etc., R. R. Co., 101 N. Y. 98 (4 N. E. 536, 53 Am. St. Rep. 123); Conklin v. New York L. & W. Ry. Co., 102 N. Y. 107 (6 N. E. 663); Rauenstein v. New York L. & W. Ry. Co., 136 N. Y. 528 (32 N. E. 1047, 18 L. R. A. 768). To the same purpose, see, also, Robinson v. Great Northern Ry. Co., 48 Minn. 445 (51 N. W. 384); and Wead v. St. Johnsbury & L. C. R. R. Co., 64 Vt. 52 (24 Atl. 361).

All these approve the doctrine that a mere change in a street grade, lawfully accomplished, without negligence or carelessness on the part of the proper authorities, does not entitle the abutters to compensation for any inconvenience that may be entailed thereby. It was said in Conklin v. New York L. & W. R. R. Co., 102 N. Y. 107 (6 N. E. 663), Mr. Justice Finch speaking for the court: “The plaintiff’s fee in it to its center line was not subjected to a new or different use involving a new or added compensation, but it remained unchanged as the public highway originally laid out in everything but its grade. If it became such by dedication, compensation for the easement was expressly waived. If taken .by right of eminent domain, the compensation paid covered all the damages sustained, among which were necessarily embraced such as might flow from a change of grade required for the public use and convenience. That might be altered by any lawful authority, and whatever of injury or inconvenience should result to the abutting owner was either waived by the dedication, or paid for by the original compensation, SO' that a change of grade upon a highway invades no private right. The contrary doctrine once held (Fletcher v. Auburn & S. R. R. Co., 25 Wend. 462), has been effectually overruled (Radcliff's Ex'rs. v. Mayor of Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357; Bellinger v. New York C. R. R. Co., 23 N. Y. 42; Selden v. Delaware Canal Co., 29 N. Y. 634). The appellant here relies upon Story v. New York Elev. Ry. Co., 90 N. Y. 122 (43 Am. Rep. 146). That case was not intended to thus unsettle the law, for it expressly excluded from its operation injuries resulting from changes of grade.” Nor do the cases of Pumpelly v. Green Bay Canal Co., 80 U. S. (13 Wall.), 166; Eaton v. Boston C. & M. R. R., 51 N. H. 504 (12 Am. Rep. 147), and others holding to the same doctrine, help the plaintiff, for in those cases there was a physical invasion of the real estate of the private owner by a permanent flooding, which was regarded as a taking within the meaning of the constitutional inhibition. These cases are characterized by Mr. Chief Justice Fuller in Gibson v. United States, 166 U. S. 269 (17 Sup. Ct. 578), as containing the “extremest qualification” upon the doctrine which is everywhere established except, perhaps, in Ohio and Kentucky.

Willis v. Winona City, 59 Minn. 27 (26 L. R. A. 142, 60 N. W. 814), is in point and authoritative to the purpose that the bridge approach constructed upon Madison Street does not constitute an additional servitude thereon. It is also authority for the other proposition held to in the first opinion, namely, that the legislative authority given the bridge company to construct the bridge and its approach, specifying that such approach should be put upon the established grade of Front Street, was in itself an establishment of the grade upon that part of the street occupied by the approach. Mr. Justice Mitchell says: “The bridge is just as much a public highway aso is Main Street, with which it connects; and, whether we consider the approach as a part of the former or of the latter, it is merely a part of the highway. The city having, as it was authorized to do, established a new highway across the Mississippi River, it was necessary to connect it, for the purpose of travel, with Main and the other streets of the city. This it has done, in the only way it could have been done, by what, in effect, amounts merely to raising the grade of the center of Main Street in front of plaintiff’s lot. It can make no difference in principle whether this was done by filling up the street solidly, or, as in this case, by supporting the way on stone or iron columns. Neither is it important that the city raised the grade of only a part of the street, leaving the remainder at a lower grade.” So, too, it was held in Colclough v. City of Milwaukee, 92 Wis. 182 (66 N. W. 110), that the construction, under legislative authority, of an elevated approach to a viaduct which occupied the whole street, constituted but a mere change of the grade thereof for the corresponding distance, but not an additional servitude for which the abutter was entitled to compensation. Mr. Justice Pinney says: “It is impossible, we think, to maintain that the construction of this approach to the viaduct is not really a mere change of the grade of the street for the corresponding- distance, and of .which it takes the place. It is in the nature of a bridge which is an extension of a highway or street, and the street beneath is practically discontinued.”

9. We feel assured that our former opinion is sound upon the proposition; but, if we are mistaken in this, the act of 1898 (Sess. Laws 1898, p, 185, § 231), declaring the bridge approach to be the established grade of Madison Street so far as occupied thereby is curative of the irregularities complained of, although such act may have been adopted after the commencement, or even decision, of the present suit in the court below: Pennsylvania v. Wheeling Bridge Co., 59 U. S. (18 How.), 421, and The Clinton Bridge, 77 U. S. (10 Wall.), 454. For the reasons here stated, the former opinion will be adhered to.

Affirmed on Rehearing.

Case Details

Case Name: Brand v. Multnomah County

Court Name: Oregon Supreme Court

Date Published: Mar 5, 1900

Citation: 60 P. 390

Court Abbreviation: Or.