146 P. 803 | Or. | 1915
delivered the opinion of the court.
“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.
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*164 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,
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);
‘ ‘ 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.”
“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.
Finding no error, the judgment is affirmed.
Affirmed.
