26 Or. 224 | Or. | 1894
Opinion by
1. Counsel for defendant seeks to reverse the decree of the court below on the grounds (1) that the erection of the bridge and its approach in Third Street, under legislative and municipal authority, violates no property rights of plaintiff, and consequently it is without remedy, although its property may be injured; and (2) the plaintiff’s remedy, if it has any, is by an action at law to recover damages, and not by suit for an injunction. But few questions have come before the courts in recent years involving larger pecuniary interests or of greater practical importance, or which have provoked more discussion, than those growing out of the enforcement by abutting lot owners of their right to compensation for the occupation and use of streets under legislative or municipal authority by private corporations for public use, under constitutions like ours, which provide that private property shall not be taken for public use without just compensation. „ It is quite generally agreed that any proper exercise of governmental power over a street iñ a municipality, for street purposes, which does not directly encroach upon the abutting property of an individual, though the consequences may be to impair its use, is not á taking within the meaning of the constitution, and will not entitle the adjoining proprietor to compensation, or give him a right of action: Cooley on Constitutional Limitations (5th ed.), 671; Transportation
2. This brings us to the question, then, whether the occupation of Third Street by the approach to defendant’s bridge is compatible with or destructive of its use as an open public street. As already stated, this street is about sixty feet in width, and the approach complained of is practically a solid structure thirty feet wide in the middle of the street, so that no use can be made of that portion of the street occupied by it except by persons desiring to use defendant’s bridge and pay toll therefor. In other words, it is in fact an appropriation of a public street to the exclusive use of a private corporation, and to the manifest injury of an abutting proprietor. The plaintiff and the public are absolutely and permanently excluded from the use for general street purposes of all that portion of Third Street covered by the approach. It practically terminates the street as an open public thoroughfare at the north line of G Street, in place of the north line of H Street as it is laid out and dedicated; and the only roadway in front of plaintiff’s property is but a few feet wide, and quite insufficient for the proper and necessary use of such property, or for the accommodation of public travel. While the city authorities undoubtedly have power to authorize the use of the street for legitimate street purposes, we do not think the public can justly demand or require such a sacrifice of private interests, or justify such an exclusive and permanent appropriation of a street in aid of a private enterprise, although for public purposes, as is contemplated in this case. It may be conceded that the general interests of Portland and the public at large aré promoted by the appropriation of the street to the purposes of an approach to defendant’s bridge; but it by no means follows that the burden of such a public improvement can rightfully be cast upon this plaintiff by ap
3. The argument that the building of the approach was a mere change of the grade of the street, authorized by proper municipal authority, is clearly untenable. The City of Portland has undoubted plenary power to alter or change the grade of a public street by proper proceedings under its charter, but the act of the municipal authorities in granting defendant permission to occupy the street did not purport to be an exercise of such power. It was simply conferring upon the defendant, so far as the city was able, the right to the exclusive and permanent use of a portion of the public street; and while such permission included as a consequence the construction of a solid roadway above and over the street surface, it does not foilow that what was done was in exercise of the power to alter or change the grade of a street. The street grade remained the same after the approach was built as before, and this approach is no part of the street, but is foreign thereto, and as useless for general street purposes as any of the structures referred to in the cases cited. We do not think a public street, or any portion thereof, can lawfully be appropriated to the exclusive and permanent use of a private corporation under the guise of an exercise of the power to alter or change the grade. The primary
4. The defendant’s counsel also claims that plaintiff’s remedy is by action at law to recover damages, and not by a suit in equity to enjoin and restrain the defendant from maintaining the approach complained of. He relies principally upon the case of Osborne v. Missouri Pacific Railway, 147 U. S. 248, 13 Sup. Ct. 299. This was a suit by an abutting owner to enjoin the defendant from laying down its railroad track at street grade under competent municipal authority, on the ground that the track would be a permanent obstruction, and the damage threatened to be done complainant was irreparable, and could not be compensated for by a recovery in an action at law. The constitution of Missouri provides that private property shall not be taken or damaged for public use without just compensation; but, .while the statutes of that state contain ample provisions for the assessment of compensation for the taking of property, there is no provision therein for such assessment when the property is merely damaged. It was therefor held, that as the laying down of defendant’s track at the grade of the street was not an exercise of the power of eminent domain, or the taking of private property for public use, there was no proceeding authorized by law which the railway company could avail itself of, to obtain an assessment of damages, while the complainant
5. As the structure, the maintenance of which is sought to be restrained in this case, is permanent and exclusive in its character, and, if suffered to continue as now located, will inflict a continuing and permanent injury upon the plaintiff, we think it manifest that it is entitled to restrain the continuation thereof by an injunction; but as it was constructed with the knowledge of and without objection by plaintiff, on the assurance, however, of the defendant, that it was only intended as a temporary expedient and not as a permanent structure, and the fact that it has become and is one of the principal avenues across the river, and daily used by a large number of electric cars, wagons, and foot passengers, the injunction should not be made mandatory until the defendant has had a reasonable time after the mandate is filed in the court below, to be determined by that court, to acquire the plaintiff’s easements in the street by agreement or by proceedings to condemn the same if it should be so advised. It follows that the decree of the court below must be affirmed, and the cause will be remanded for further proceedings in accordance with this opinion.
Affirmed,