Choctaw, O. W. R. Co. v. Castanien

*739 Turner, J. (after- stating the facts as above). The chief contention made by plaintiff in error the railroad company is that the court erred in overruling its motion for judgment non obstante, claiming the special findings to be inconsistent with the general verdict and invoking the statutes to the effect that where such is the case the trial court may give judgment accordingly. St. Okla. 1893, §§ 4175, 4176, 4177. Where the special findings show a state of facts inconsistent with the general verdict, such finding of fact must control. Severy Ad. v. C., R. I. & P. Co., 6 Okla. 153, 50 Pac. 162. It is reversible error to overrule a motion for judgment on the special findings when such is the case. 20 Enc. of Pl. & Pr. 355, citing Gripton v. Thompson, 32 Kan. 367, 4 Pac. 698; Atchison, etc., R. R. Co., v. Plunkett, 25 Kan. 188; Tobei v. Brown, 20 Kan. 14. The facts disclosed by the special findings are: That the lots in controversy are about 50 feet wide and front on Vilas avenue, which is open to Division street on the west, but was closed by a fence built by the railway company 5 feet east of their east line on the edge west of a 14-foot excavation made by the said company, which extended 5 feet from and along the east line of said lots and intersected and cut off the alley running along their south line in the rear, which, before that, was open and in general use by the public, to the intersection of Vine street, which was the next street, running north and south; that the railway company has taken no part of said lots; that since making the excavation said railway company had dedicated to the public a strip of ground sufficient to afford ingress and egress to and from the alley to the east; that the jury allowed no damages by reason of the closing of Vine street at the point of its intersection with Vilas avenue; that access to the front of said lots is free and unobstructed, except that a wagon can reach the front at the east side only by backing up and can be driven within about 12 feet of the northeast corner without backing; that the entire depreciation of the value of plaintiff’s property is $500, *740 $350 of which was caused by closing the alley and $150 by interfering with ingress and egress to and from Yilas avenue. The claim for damages to lateral support was abandoned. The only building on the lots consisted of a livery stable with two entrances fronting on Yilas avenue extending back to the alley, It was conceded that the title to the property was in plaintiffs, and that the railway company, in doing the acts complained of, was acting pursuant to valid ordinances of the city, introduced in evidence. Since the railroad company concedes a liability of $150 for injury done to the front of plaintiff’s property, the only question necessary for us to determine is: Do the acts complained of justify the finding and judgment for $350 for depreciation iu the value of plaintiff’s property caused by the closing of the alley ? We think not, for the reason that the damage sought to be recovered- is for a consequential injury. This we think is well settled in Scrutchfield v. Choclaw, etc., Ry. Co., 18 Okla. 308, 88 Pac. 1048, 9 L. R. A. (N. 8.) 496. The injury there complained of grew out of the construction of this same road up Yine street in the city of Guthrie. In that case the testimony disclosed that this street crossed at right angles Harrison avenue, upon which plaintiff owned a business lot about 150 feet west of the - railroad. It also crossed at right angles Yilas avenue, upon which plaintiff owned a dwelling house about 75 feet east of the railroad. It also crossed at right angles Springer avenue, upon which the plaintiff owned two lots about 40 feet - east of the railroad. All of the streets of the city were open to plaintiff’s property,- except one-half of Yine street, which was occupied by the defendant company. The question determined in that case was substantially the same as that to be determined in this, which was stated by the court as follows: “From the foregoing statement of facts, it is manifest that the question presented in this case is whether or not the owner of real property can maintain an action for damages thereto, by reason of the lawful construction of a railroad where no parts of the premises are taken by the railroad right of way, and where *741 the only damage complained of is such as arises by reason of the construction of the railroad across a street which runs in front of plaintiff’s property, and which street is obstructed by the construction of the railroad, at the point where said street is crossed.” After reviewing the facts the court said: “From this it will appear that no part o'f the plaintiff’s property has been taken, and that damage sought to be recovered is lor a consequential injury which affects all persons in the vicinity alike, except possibly in the degree 'of injury believed to have been sustained, because of the construction of a line of railroad along a public street of the city”— and affirmed the judgment of the lower court sustaining a demurrer to plaintiff’s petition. There is no difference in principal in that ease and the case at bar. In that case the damage sued for was alleged to have accrued to plaintiff’s property from the construction of the railroad across a street which ran in front of plaintiff’s property some distance away. In the case at bar the damage sued for is alleged to have accrued to plaintiff’s property from the construction of a railroad across an alley, which runs behind plaintiff’s property a few feet away. Following the holding of the court in that case we are constrained to hold in this ease that the injury was consequential, for which no recovery can be had. ■ It is unnecessary to multiply authority on this point, but we quote from one and cite others. In Rochette v. Chicago, Milwaukee & St. Paul Railroad Company, 32 Minn. 201, 20 N. W. 140, the court said: “The question in this case is whether the complaint stated a cause of action. The facts alleged are: That plaintiff is the owner of lots 49, 50, and 51, of Daly’s subdivision of block 2 of Stinson, Brown and Ramsey’s addition to St. Paul, on which are situated two houses, one of which is occupied by himself and the other by his tenants; that these houses are so situated that, previous to the acts complained of, plaintiff’s best, most convenient, and usual means of access to and egress from his said houses was by way of Duke street on the west, and Grace street on the south, by and through which he was accustomed to reach Fort street, and his place of business ’in St. Paul; that this means of access and egress was short and convenient and greatly used by him; that the de *742 fendant has built and is operating a railroad immediately adjoining said real estate of plaintiff, and within three feet of his south line; that in building said road defendant excavated to the depth of seven feet across Duke street and in and upon Grace street, whereby defendant obstructed and interfered with and prevented the use and enjoyment of said streets by plaintiff, and he had been acustomed and was entitled to use and enjoy the same, and cut off and prevented his use of this means of access to and egress from his property, and compelled him to seek and use a much less convenient and accessible route, greatly to his loss and damage. It will be observed that there is no allegation that any of plaintiff’s property has been taken, or that the corpus of it has been in any way physically touched or disturbed. Neither is it alleged that the act of defendant in making this excavation on these streets is unlawful, nor that the part of the street upon which it is done abuts plaintiff’s premises; in fact, it is conceded that it is not. Nor is it alleged that the excavation has been improperly or negligently done. There is no claim that this excavation cuts off plaintiff from all means of access and egress to and from his premises— simply that it cuts him off from the most convenient means, and compels him'to resort to others which are less convenient. The injuries therefore which he suffers are not special to himself, but such as are sustained in common with the public, possibly greater in degree, but the same in kind”— and affirmed the judgment of the lower court sustaining a demurrer to the complaint. In re Melon Street, 1 Pa. Super. Ct. 63; Bradley v. N. Y. & N. H. Ry. Co., 21 Conn. 293; Buhl v. Front St. Co., 98 Mich. 569, 57 N. W. 829, 23 L. R. A. 392. Paraphrasing a portion of the opinion in Scrutchfield v. Choctaw, etc., Ry. Co., supra, we conclude that authorities might be multiplied almost without limit that where, as in this case, no part of plaintiff’s property has been taken, the alley upon which it abuts is not interfered with, and his only grievance consists in not having free and unobstructed access to said property in one direction, all other alleys of the city being open and unobstructed, he suffers no other or different kind of grievance or damage than such as is common to the general public, and he cannot recover. There is no conflict between this case and Foster Lumber Com *743 pany v. Ark. Talley & Western Ry. Co.. 20 Okla. 583, 95 Pac. 224. There the court held that an abutting owner whose means of access to his property had been materially interrupted by the building of a railroad in front of his property, the same being an invasion of an easement, might recover. In the case at bar no such question is involved. We are therefore of the opinion that the special findings show a state of facts inconsistent with the general verdict, in that they do not justify a judgment for $350 for depreciation in value of plaintiff’s propert}, caused by the closing of the alley, and for that reason the cause is reversed, with directions to enter judgment in favor of plaintiff and against defendant for $150, for injury done to the front of plaintiff’s property and for costs. Kane, C. J.;, and Dunn and Hayes, JJ., concur; Williams, J., dissents.