Sandstrom v. Oregon-washington Ry. & Nav. Co.

146 P. 803 | Or. | 1915

Mr. Justice Burnett

delivered the opinion of the court.

1. It was established, as stated in' the answer, that the public authorities had given permission for the construction of the railway. The effect of this is thus stated in 1 Lewis, Eminent Domain (3 ed.), Section 169, page 304:

“Authority to occupy a street, whether obtained directly from the legislature or from a local municipality, only protects the company to the extent of the public right or easement in the street and leaves tbe company to deal with private rights as in other eases”: Muhlker v. New York & Harlem R. R. Co., 197 U. S. 544 (49 L. Ed. 872, 25 Sup. Ct. Rep. 522).

In other words, the sanction of local authorities exonerates the company from the charge of maintaining a public nuisance, but does not affect the damages to be assessed for the invasion of private rights.

2-4. The main contention of the defendant is that owing to the fact that the excavation is not immediately in front of the plaintiff’s premises, where they face on .Newark Street, but is at least 16 feet east of bis northeast corner, he suffers no injury that is not experienced by the public at large. The principle, indeed, is well established that, for an injury which an individual sustains in common with the general public, he cannot complain, although he may suffer more acutely than the rest of the people. In such cases he must find his relief, if at all, at the hands of the state by public prosecution. It is equally well settled, however, that although the general public may experience inconvenience from the sequestration of a public street by a railroad company, yet if an individual from the identical act undergoes a damage or injury peculiar to himself, he may recover for the same.

Having purchased the property with reference to the dedicated streets appearing on the plat, the plaintiff was entitled to the use of those highways as an appurtenance to his premises. In common with the general public residing in other parts of the city or state, he had a right to travel along Newark Street without let or hindrance. For the invasion of the mere right to travel, as thus far stated, he is barred from recovery by the municipal legislation mentioned; but, as he passed along the street with other members of the general public, he had a privilege which no other person possessed, to wit, that of entering upon his close from that street, and prior to the construction of the road, in the exercise of his prerogative, he could approach his premises from the east as well as from the west. The" defendant is in the position of saying to him in substance:

“Although you had the right, before we°came upon the ground, to go to your residence both from the east and from the west along Newark Street, yet in our judgment it is enough for you if you can reach it from the west, and we will therefore appropriate yonr eastern approach for ourselves.”

This is a palpable invasion of the plaintiff’s right of access to and egress from his premises. If it is sound in principle to allow this without compensation in damages, the company could as well take from him both approaches. The complaint discloses that the plaintiff has suffered an injury not common to the general public but peculiar to himself, whereby he has been deprived of part of his convenient method of access to and egress from his realty.

The difficulty is not so much in the statement of the rule as in its application. Many cases are cited by the defendant where the property holder was denied relief in equity when he sought to enjoin the maintenance of the obstruction. Most of these cases proceed upon the theory that, in instances like the present, the plaintiff must be content with his remedy at law in the recovery of damages. Others urge that the plaintiff failed to show anything more than an injury suffered in common with other people who desired to use the thoroughfare. The great weight of authority, however, indicates that, where a street upon which the plaintiff’s property abuts is so obstructed that he finds himself fronting upon a cul-de-sac, he is entitled to damage. In effect this is taught by the decision of this court, speaking by Mr. Justice Moore in Bernard v. Willamette Box & Lumber Co., 64 Or. 223 (129 Pac. 1039). There the plaintiff was the owner of a plat of ground on the corner of a block. A street running along the south side was already barred by a railway embankment about eight feet high some distance west of his premises. To reach this railway the defendant, a lumbering concern, had constructed in the street, along the south side of the plaintiff’s premises, an elevated tramway, which effectually cut off his access to that street. The plaintiff’s approach to the street on the east, however, remained unimpaired, but he instituted a suit in equity to prevent and remove the structure on the south as a public nuisance and to recover damages. Pending the suit, the defendant took down the tramway and abated the nuisance; but the court retained jurisdiction to hear and determine the cause upon the question of damages. It is clear that, if the plaintiff had chosen to tolerate the nuisance without abatement, he could have recovered the damages in question by an action at law, although he had ample access to his property by the other street.

So here, although the plaintiff may use the passage to the west along Newark Street as before, yet he is damaged by being deprived of the same privilege toward the east along that avenue, and can recover for the same at law. The following precedents are instructive on this branch of the case: cushing Wetmore Co. v. Gray, 152 Cal. 118 (92 Pac. 70, 125 Am. St. Rep. 47); Brunswick R. R. Co. v. Hardey, 112 Ga. 604 (37 S. E. 888, 52 L. R. A. 396); Winnetka v. Clifford, 201 Ill. 475 (66 N. E. 384); O’Brien v. Central etc. Iron Co., 158 Ind. 218 (63 N. E. 302, 92 Am. St. Rep. 305, 57 L. R. A. 508); Park v. C. & S. W. Ry. Co., 43 Iowa, 636; Dairy v. Iowa Cent. R. R. Co., 113 Iowa, 716 (84 N. W. 688); Young v. Rothrock, 121 Iowa, 588 (96 N. W. 1105); Leavenworth etc. R. R. v. Curtan, 51 Kan. 432 (33 Pac. 297); Richardson v. Davis, 91 Md. 390 (46 Atl. 964); Kaje v. Chicago etc. Ry., 57 Minn. 422 (59 N. W. 493, 47 Am. St. Rep. 627); Fitzer v. St. Paul Ry. Co., 105 Minn. 221 (117 N. W. 434, 127 Am. St. Rep. 557, 18 L. R. A. (N. S.) 268); Glaessner v. Anheuser Busch Br. Co., 100 Mo. 508 (13 S. W. 707); Buchholz v. New York L. E. & W. R. R. Co., 148 N. Y. 640 (43 N. E. 76); Tise v. Whitaker-Harvey Co., 144 N. C. 507 (57 S. E. 210); Johnston v. Old Colony R. R. Co., 18 R. I. 642 (29 Atl. 594, 49 Am. St. Rep. 800); Richardson v. Lone Star Salt Co., 20 Tex. Civ. App. 486 (49 S. W. 647); Brauer v. Baltimore Ref. Co., 99 Md. 367 (58 Atl. 21, 105 Am. St. Rep. 304, 66 L. R. A. 403); Robbins v. Scranton, 217 Pa. 577 (66 Atl 977); Tilly v. Mitchell & Lewis Co., 121 Wis. 1 (98 N. W. 969, 105 Am. St. Rep. 1007); Texarkana v. Leach, 66 Ark. 40 (48 S. W. 807, 74 Am. St. Rep. 68); Chrisman v. Omaha etc. Ry., 125 Iowa, 133 (100 N. W. 63); Gargan v. Louisville etc. Ry., 89 Ky. 212 (12 S. W. 259, 6 L. R. A. 340); Bannon v. Rohmeiser, 90 Ky. 48 (13 S. W. 444, 29 Am. St. Rep. 355); Van Witsen v. Gutman, 79 Md. 405 (29 Atl. 608, 24 L. R. A. 403); Horton v. Williams, 99 Mich. 423 (58 N. W. 369); Dean v. Ann Arbor R. R. Co., 137 Mich. 459 (100 N. W. 773); Vanderburgh v. Minneapolis, 98 Minn. 329 (108 N. W. 480 6 L. R. A. (N. S.) 741); Foust v. Pennsylvania R. R. Co., 212 Pa. St. 213 (61 Atl. 829); Chicago v. Burcky, 158 Ill. 203 (42 N. E. 178, 49 Am. St. Rep. 142, 29 L. R. A. 568); Rigney v. Chicago, 102 Ill. 64.

5. We cannot establish any hard-and-fast rule declaring bow far along a street shall be extended an abutter’s right to sue for damages to bis close, resulting from the obstructions not immediately in front of bis bolding. Lewis on Eminent Domain, (3 ed.), Section 191, says:

‘ ‘ This right extends at least to the next intersecting street. Consequently, if the street upon which the plaintiff abuts is wrongfully closed or obstructed in either direction at a point between plaintiff’s property and the next intersecting street, this right is violated and an action accrues.”

"What seems to be a sounder expression is found in Robbins v. Scranton, 217 Pa. 577 (66 Atl. 977):

“The problem before the jury was to determine whether the effect of the improvements as a whole had been to work any proximate, immediate, and substantial injury to the value of the real estate.”

So in the instant litigation we hold that a case was made sufficient to call for the verdict of a jury on the amount of damages, for we cannot say, as a matter of law, that the plaintiff experienced no injury by having the street in front of his residence closed for the benefit of the defendant at a point immediately east of his premises. Much was pressed upon our attention about Newark Street being unimproved beyond cutting out the brush several years ago, but that cannot affect the principle or take the case from the jury.

6. The plaintiff filed a cost bill in the Circuit Court amounting to $236.20, one item of which was, “Reporter’s transcript on appeal of first trial, $110.” It is not mentioned in the statement of disbursements what items thereof are applicable to the first cause of action and what to the second. The defendant moved the conrt for an order striking out the plaintiff’s cost bill “in so far as the same relates to the second cause of action set forth in said complaint.” No further specifications of objection are made, except to the item of $110 already mentioned. The defendant contests the allowance of that, because it appears that, on a former trial of this case, the court directed a verdict in favor of the defendant on the first cause of action, and the jury returned a verdict for the defendant on the second cause of action. On both the judgment of the Circuit Court was reversed: 69 Or. 194 (136 Pac. 878, 49 L. R. A. (N. S.) 889). The defendant now bases his opposition to the cost bill npon the fact that in the second trial the jury returned a verdict for the plaintiff for $300 on the first cause of action, and for the defendant on the second cause of action. In the absence of anything segregating the items of the bill applicable to each cause of action, we cannot give the defendant any relief, because the statute requires that the objection to a cost bill must state the particulars of such objection. Section 569, L. O. L.

Finding no error, the judgment is affirmed.

Affirmed.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.