271 N.W. 421 | N.D. | 1937
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *216 The plaintiffs seek to enjoin the construction of an overpass on Fourth Avenue Southeast in the city of Minot over the tracks of the Minneapolis, St. Paul Sault Ste. Marie Railway Company where these tracks intersect the avenue. U.S. Highway No. 2 passes along Fourth Avenue Southeast and crosses the railroad tracks at this point. The plaintiffs bring the action as abutting property owners and also as taxpayers. They appeal to this court from orders of the District Court granting a motion to quash a temporary restraining order previously issued and sustaining a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.
We will first consider the plaintiffs' contention as property owners. They allege that they own certain lots adjoining and fronting upon Fourth Avenue Southeast; that said avenue has been paved by the city of Minot and otherwise improved by the laying of sidewalks, gutters, and water and sewer mains; that the cost of said improvements has been assessed against the owners of adjoining property; that the plaintiffs own and occupy residences and homes upon their properties and that the plaintiff, Cummings, owns and operates upon his property a tin shop and awning and furnace business for which he has established a substantial trade; that the proposed overpass will occupy the street and highway as they now exist; that for the purpose of affording plaintiffs and other owners of adjoining property abutting on the avenue some form of access to their property and ingress and egress, the defendants will acquire additional property for highway purposes sufficient to enable the street to be widened on each side of the overpass in order to enable vehicles and traffic to pass around the approaches to the overpass to a point where it is sufficiently high *219 for the traffic to pass under it, and that the plaintiffs are damaged by being deprived of access to and from their properties except as is thus provided. Plaintiffs claim that they will be further damaged as abutting owners because they will be deprived of light and air, and their right to have the street and highway kept open at the grade as a thoroughfare.
It appears by the affidavit of the engineer of the state highway department, who is in charge of the proposed construction, that the plans contemplate a roadway thirty feet in width on the overpass and that the overpass will not occupy the full width of the street. It will consist of abutments of earth, concrete, and other material at the ends, and a bridge construction approximately twenty feet in height for that part which passes the property described in the complaint and crosses the railway. It further appears that the city of Minot has agreed to purchase an additional ten feet on each side of the street where additional space is needed around the abutments to permit ingress and egress to property along the street; that at the point where the overpass is to be constructed in front of the plaintiffs' property, the full width of the street will be available for traffic except as it may be interfered with by piers supporting the overpass; that the construction will permit the public to pass from north to south under the overpass, and from east to west under it and around the abutments but not across the railroad tracks; that in front of the plaintiffs' property the overpass will be higher than the buildings on such property.
The plaintiffs contend that the erection of the overpass will amount to a vacation of the street and that since no proceedings have been had to vacate the street, the injunction should issue. The facts do not support this contention. The main stream of traffic will pass along the street as before, except that it will be diverted to a higher level by the overpass. Traffic will also be permitted on most of the street on its original level, although it will, no doubt, be somewhat impeded by the abutments and supporting pillars of the structure. The overpass itself is a public structure to be used as a roadway. Its construction upon the street does not constitute an abandonment or vacation of the original street.
A more serious question is presented by the contention of the *220 plaintiffs that the overpass will damage their abutting property by interfering with access to their property and with the light and air which the abutting property owners are entitled to enjoy. It appears from the complaint that the abutting property owners will suffer consequential damages by the erection in the street in front of their property of a structure higher than the buildings, bearing a roadway thirty feet wide and with supporting piers in the street sufficient in size and number to support the roadway and its anticipated traffic. Although access to plaintiffs' property will not be destroyed, it will be materially interfered with. In order to leave the plaintiffs' property and enter the main stream of traffic, the plaintiffs will be required to travel eastward for some distance beneath the overpass, thence around the east abutment and onto the highway.
Section 14 of the Constitution of North Dakota provides in part "private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for the owner, . . ." Prior to 1870 the constitutions of various states prohibited only the taking of private property for public use without compensation. In that year Illinois amended its constitution by adding the word damaged. Similar changes were made in a number of other states. Such a provision was made in the original constitutions of North and South Dakota when they became states. Under constitutions providing that private property shall not be damaged for public purposes without compensation, the question of how far this right extends has been discussed in many cases. In this case we are interested in whether an abutting owner whose light, air, and access will be interfered with but not entirely cut off by a public improvement erected in the street, is so injured as to be entitled to compensation under § 14 of our Constitution. The doctrine of damnum absque injuria as applied to property damaged but not taken by public use, has not been entirely abrogated by § 14. There are, undoubtedly, injuries which the property owner sustains by reason of the erection of public improvements for which he can maintain no action. Lewis, Em. Dom. 3d ed. § 366. Moreover, an injury arising from the improvement of a public street in a manner reasonably contemplated at the time of the dedication of such street cannot give rise to a cause of action, but an abutting property owner should be entitled *221 to recover for injuries arising from interference with his easements of light, air, and access when such interference is caused by the lawful use of the street in a manner which could not have been reasonably anticipated at the time of dedication, and for which damages have not been waived.
The rights of an abutting owner to ingress and egress and to light and air are private rights which he is entitled to exercise in and over the street in front of his premises. Any use of the street which materially impairs or destroys the enjoyment of these rights, causes a damage special and peculiar to the owner, different and distinct from an injury to the rights of the general public. It is generally held that an injury to the public right gives no right of action for damages arising from the lawful erection of a public improvement, but an abutting owner may suffer actionable injury which is special to him and for which he may sue for damages or seek an injunction. Williams v. Los Angeles R. Co.
The Supreme Court of the United States in Chicago v. Taylor,
In Pueblo v. Strait,
It appears from the complaint that the structure about to be erected in the street will damage the plaintiffs by interfering with their special rights in the street and that such damage is one within contemplation of § 14 of the constitution. This being so, may the plaintiffs have an injunction, or must they wait until the structure has been erected and sue for damages? Our constitution does more than prohibit the taking or damaging of private property for public use without compensation. It also provides that the compensation shall first be made to or paid into court for the owner. In the case of Donovan v. Allert,
"Section 14, of the Constitution of North Dakota, was copied literally from § 14, Art. 1, of the Constitution of California adopted in 1879." Martin v. Tyler,
In Becker County Sand Gravel Co. v. Wosick,
In Brown v. Seattle,
In the case of State ex rel. Moline v. Driscoll,
In Arkansas State Highway Commission v. Partain (Ark.)
An injunction against changing the grade of a street without compensation for the damage caused thereby having first been made, was held to be proper in McElroy v. Kansas City (C.C. Mo.) 21 F. 257. In the opinion written by Justice Brewer, it is said: "When the defendant has an ultimate right to do the act sought to be restrained, but only upon some condition precedent, and compliance with the condition is within the power of the defendant, injunction will almost universally be granted until the condition is complied with. This principle lies at the foundation of the multitude of cases which have restrained the taking of property until after the payment of compensation, for in all those cases the legislature has placed at the command of the defendant means for ascertaining the value of the property. In those cases the courts have seldom stopped to inquire whether the value of the property sought to be taken was little or great, whether the injury to the complainant was large or small, but have contented themselves with holding that as the defendant had full means for ascertaining such compensation, it was his first duty to use such means, determine and pay the compensation, and until he did so the taking of the property would be enjoined."
The right of an abutting property owner to an injunction against a change of grade when compensation had not been made, has been *226
upheld in Alabama in New Decatur v. Scharfenberg,
In Searle v. Lead,
For general authority on injunction as a proper remedy to protect the rights of ingress and egress from a street to abutting property, see note 35 L.R.A.(N.S.) 193. *227
The case of King v. Stark County,
As taxpayers the plaintiffs allege that the county of Ward, in which the city of Minot is located, has agreed and its officers and agents threaten and are about to pay from its road and bridge fund the sum of $14,000.00 for the purpose of enabling the city of Minot to secure additional property and rights, and to pay damages necessary to the construction of the overpass, and that moneys cannot be used from said fund for said purpose. They base their contention on § 1946, 1925 Supplement to Compiled Laws. An examination of this section discloses that as originally enacted the fund could only be expended for road machinery, grading, ditching, surfacing and dragging highways. By chapter 31, § 13 of the Laws of 1917, the original section was amended by adding thereto, "or the whole of said sum or any part thereof may be expended in co-operation with the state highway commission." In this case it appears that the construction complained of will be built by or under the direction of the State Highway Commissioner upon a duly designated U.S. Highway with funds procured from the Federal Government. In order that additional right of way may be procured, the defendant railroad is contributing $10,000.00 and Ward county $14,000.00. From the facts pleaded in the complaint, it does not appear that § 1946 will be violated. Such facts as are pleaded tend to indicate that the money obtained from the county road and bridge fund will "be expended in co-operation with the state highway commission."
Plaintiffs also contend that the existing indebtedness of the city of Minot is now in excess of the limitation of the indebtedness provided by § 183 of the state constitution; that the moneys provided by the defendant railroad and the county for purchasing right of way and paying damages will be exhausted in the acquisition of the additional right of way; that there will be no money left therefrom with which to pay the plaintiffs and others like situated for the damages to their property by reason of the construction of the overpass, and *228
that the liability for such damages constitutes an indebtedness within the provisions of § 183, and since the city has already exceeded the constitutional limit of indebtedness, the erection of the overpass and the damage caused thereby will result in further increasing the city's debt beyond its constitutional limit. No amount of damage is alleged. The damages to which the plaintiffs may be entitled in this case are wholly contingent. The amount thereof may be great or small. The city may have available funds with which to pay them in cash. Assuming for the purpose of deciding this point, that the city of Minot is now indebted in excess of the limitations prescribed by the constitution, the complaint does not state facts sufficient to entitle the plaintiffs to injunctive relief upon that ground. Bismarck Water Supply Co. v. Bismarck,
The complaint states a cause of action for injunctive relief based upon § 14 of the Constitution of North Dakota. The court erred in sustaining the demurrer and in quashing the temporary restraining order.
Reversed and remanded for further proceedings in conformity with this opinion.
CHRISTIANSON, Ch. J., and BURR, NUESSLE and BURKE, JJ., concur.