66 Ark. 40 | Ark. | 1898
Lead Opinion
The city of Texarkana is divided by the St. Louis, Iron Mountain and Southern Eailway into two parts. A part of the city lying south of the railway is known as “College Hill Addition.” This addition and the business part of the city, which lies north of the railway, is connected by a street which is known as the College Hill street. It leads from Broad street on the north across many tracks of railroad in the St. Louis, Iron Mountain & Southern Bailway yards to Dudley street on the south. South of the railway, and abutting on College Hill street,' Mrs. Fancy Leach owns four town lots. These lots are improved, and one or more of them constitute her homestead. To obviate the necessity of crossing so many railway tracks, and to protect life and property, the city council of Texarkana, in consideration that the railway company would open a new street on a certain route, and across the railway at a designated point, where the tracks were less numerous than they are at the crossing of the College Hill street, passed an ordinance by which it declared vacated the said crossing of the College Hill street, and authorized the railway company to close the same. In pursuance of this ordinance, the railway company was proceeding to open said new street and to close up said crossing, when Mrs. Leach, to prevent it, instituted an action in the Miller circuit court against the city and railway company, and sued out an order therein prohibiting and restraining them from so doing. At the hearing it clearly appeared that the effect of closing and vacating the same would depreciate the the value of said town lots of Mrs. Leach' from twenty-five to fifty per cent., as well as the value of the town lots of many other persons in the same vicinity; and the eoui’t made the order perpetual, and the defendants appealed.
Texarkana being a city of the second class, the ordinance of its city council is void. The municipal authorities of a city or town cannot vacate a street or any part of it without the authority of the. legislature. This power does not inhere in a municipality. Hoboken Land & Imp. Co. v. Hoboken„ 36 N. J. L. 540; Polack v. S. F. Orphan Asylum, 48 Cal. 490; 2 Dillon, Municipal Corporations, (4 Ed.) § 666, and notes. The statutes of this state authorize municipal eorpoi’ations to lay off, open, widen, straighten, establish and improve streets, and keep them in repair, but they do not expressly, impliedly, or incidentally confer upon cities of the second class or • incorporated towns authority to vacate streets. Sand. & H. Dig., §§5151, 5208
The vacating and closing of the College Hill street crossing of the railway would be a public nuisance, and an injury to Mrs. Leach specially, notwithstanding it would affect many others in the same manner; and her right to an injunction to prevent it is unquestionable. Draper v. Mackey, 35 Ark. 497; Wesson v. Washburn Iron Co., 13 Allen, 95; S. C. 90 Am. Dec. 181; Snell v. Buresh, 123 Ill. 151; Corning v. Lowerre, 6 Johns. Ch. 439; Keystone Bridge Co. v. Summers, 13 W. Va. 476; Pettibone v. Hamilton, 40 Wis. 402; Francis v. Schoellkopf, 50 N. Y. 152; Hamilton v. Whitridge,. 11 Md. 128; S. C. 69 Am. Dec. 184; Norcross v. Thoms, 51 Me. 503; S. C. 81 Am. Dec. 588; Milhau v. Sharp, 27 N. Y. 611; S. D. 84 Am. Dec. 314, 321; Brown v. Watson, 47 Me. 161; S. C. 74 Am. Dec. 482; 2 Wood, Nuisances (3 Ed.) §§ 663, 669, 670, 672, 674, 676-680.
Let the decree of the Miller circuit court be affirmed.
Concurrence Opinion
concurs as to want of power in city to vacate street, but dissents as to special interest of appellee to bring this suit.