95 P. 945 | Idaho | 1908
Lead Opinion
This action was originally commenced in 1903 by the village of Sandpoint against the defendant Doyle,
It is necessary to observe here that the first trial took place before the Hon. E. T. Morgan, who was then presiding judge of the first judicial district, and a new trial was granted by him. Before the case came on for a new trial, Hon. W. W. Woods succeeded to the office of judge of the first judicial district and accordingly tried the case on retrial. Judge Woods, therefore, did not see the witnesses or hear them
It appears from the evidence that the bridge in question is about sixteen feet wide or 14% in the clear, and that it crosses what is known as Sand creek, and that the street at each end of the bridge is 50 feet in width, and the street over which the bridge is erected is the street connecting Railroad street with First street in the village of Sandpoint. This bridge is 450 feet long and varies from a height of 27 feet at the deepest place in the canyon or stream down to a point at each side of the canyon at which the bridge meets the ground. It is a wooden bridge, with posts and handrails on each side to protect pedestrians, vehicles and animals from running or falling off the bridge. The stream is only about 25 feet wide, and at low water is only about 6 inches deep, but when the high waters come the stream is sometimes as much as 300 feet wide and 15 feet deep at the center of the stream. The defendant Doyle owns a lot situated within the depression or canyon between the main channel of the stream and the end of the bridge. The water seldom overflows his lot. The easement or right of way for a street in front of Doyle’s lot appears to be 50 feet in width, but when plaintiff constructed its bridge it built the bridge on the side of the street next to Doyle’s lot and immediately along and contiguous to the front of the lot, so that no space was left between the side of the bridge and the defendant’s lot. This bridge has been constructed for some six or eight years. Doyle commenced the construction of his building, erecting it on substantial posts, well braced, and in doing so it became necessary for him to cut the railing on the side of the bridge next to his property. He constructed his building so as to
It is contended by the municipality that the decision of this court on the previous appeal is the law of the case, and that the judgment rendered and entered by the district court is in conflict therewith. On the previous appeal, this court, speaking through Chief Justice Stoekslager, said: “"We think the village authorities have the power to permit or reject' the application of anyone to construct any kind of a building to connect with this bridge. If it is by them considered in
In considering the general question of the right of ingress and egress and the property owner’s right of action for damages on account of an obstruction thereof, the supreme court of Minnesota in Brakken v. Minneapolis etc. R. R. Co., 29 Minn. 41, 11 N. W. 124, says:
*758 “With reference to the other point it is well settled that the owner of lots abutting on a public street, whether he owns the soil to the center of the street or not, has a special interest in the street different from that of the general public. It may not be very important to the general public whether they shall be able to get to the private property of an individual, but it is important to the individual whether he should be able to get to and from his residence or business, and whether the public have the means of getting there for social or business purposes. If there be an obstruction in the street in front of or near his abutting property, so as to prevent access to it, the damage which he sustains is different, not merely in degree, but in kind, from that experienced in common with other citizens, and he may maintain a private action for the special injury to him, notwithstanding there is also a remedy in behalf of the public.”
Likewise, the supreme court of Kansas in Venard v. Cross, 8 Kan. 255, says:
“But the petition goes further, and alleges that this highway is plaintiff’s ‘only means of ingress and egress’ to his land. Obstructing such highway, therefore, prevents his access to his lands. Here is disclosed a particular injury to plaintiff, one differing not merely in degree, but also in kind, from that suffered by the community in general. It is not that he uses this highway more than others, but that the use is of a particular necessity to him, affording him an outlet to his farm. It is to him a use and a benefit differing from those enjoyed by the public at large. Obstructing the highway destroys that particular use and benefit. He therefore may maintain his individual action.”
(See, also, Cincinnati etc. Street Ry. Co. v. Cumminsville, 14 Ohio St. 523; Lostutter v. Aurora, 126 Ind. 436, 26 N. E. 184, 12 L. R. A. 259; Broome v. New York & N. J. Tel. Co., 42 N. J. Eq. 141, 7 Atl. 851.)
Considerable stress has been laid on the proposition that an abutting property owner has no right to interfere with or cut the rails of a bridge. That is a correct general principle of law; but it is founded upon the assumption that the
We have examined all the evidence in this case and are satisfied that the village is not entitled to an injunction restraining the respondent from maintaining his building and place of business on his lot abutting on this bridge. We are also satisfied that he is entitled to egress and ingress over this, bridge.
The judgment of the lower court must therefore be affirmed, and it is so ordered, with costs in favor of respondent,
Dissenting Opinion
Dissenting. — I am unable to concur in the conclusion reached by my associates. While a bridge is a highway under our law, it seems to me that there is a clear distinction between the rights of land owners abutting on the streets of a town or city and the rights of land owners abutting on a bridge. Bridges necessarily require different and more careful protection from fire and other elements than the ordinary street, and most of the bridges of the state are only of sufficient width to permit vehicles to pass each other, and I do not think that the owners of property abutting on a bridge have that “special and peculiar right,” referred to in the opinion of the majority, to the use of the bridge that abutting property land owners have on the ordinary street or highway.
In my view of the matter, the abutting land owners to a. bridge have the same rights as the public to use such bridge, but they have no right to establish business houses along such
The judgment of the lower court ought to be reversed.