Kurtz v. Southern Pacific Co.

Opinion by Mr. Chief Justice Moore. r 1. The statute of' this state provides generally that when, upon proper application and due notice, the County Court of any county vacates a street, the land so dedicated to the public shall be attached to the lots or ground bordering on such street, and all right or title thereto shall vest in the person or persons owning the property on each side thereof, in equal proportions: Section 3279, L. O. L. In construing this enactment it has been held that notwithstanding the dedication of a city street, the title in fee to the highway remains [217] in the dedicator until it passes by a conveyance of a lot, when the grantee takes and holds the title to the middle of the street upon which the land abuts, subject, however, to the public easement therein: McQuaid v. Portland etc. Ry. Co., 18 Or. 237 (22 Pac. 899); Lankin v. Terwilliger, 22 Or. 97 (29 Pac. 268); Huddleston v. Eugene, 34 Or. 343 (55 Pac. 868, 43 L. R. A. 444). In John P. Sharkey Co. v. City of Portland, 58 Or. 362 (106 Pac. 1331, 114 Pac. 933), Mr. Justice McBride, discussing this subject, says: “It is settled past controversy in this state that the abutting owner is also the owner of the soil of the street in front of his lot to the center of the street, subject to the right of the city to improve the same for the pur■pose of travel.” The organic law, regulating the condemnation of land, provides: “Private property shall not be taken for public use * # without just compensation; nor except in case of the state, without such compensation first assessed and tendered”: Article I, Section 18, of the Constitution of Oregon. “No person’s property shall be taken by any corporation, under authority of law, without compensation being first made or secured in such manner as may be prescribed by law”: Id., Article XI, Section 4. In McCammon etc. L. Co. v. Trinity etc. R. Co., 104 Tex. 8 (133 S. W. 247, Ann. Cas. 1913E, 870, 36 L. R. A. (N. S.) 662, the Supreme Court of Texas, in construing clauses of the Constitution of that state, which provided that without consent of the owner his property shall not be “taken, damaged, or destroyed” without compensation, and that when his property is taken, “compensation shall be first made or secured by a deposit of money,” it was ruled that the occupation of a [218] street by a railroad was a “taking” of the property of a person owning the fee of the street, and that such occupation was not a mere “damaging,” for which compensation might be made subsequently. In a note to that case it is said: “It is generally held that an abutting owner who owns the fee to the center of the street may enjoin a railroad company from laying its tracks in the street without first paying or securing compensation for the injury to his property. But where the fee in the street is in the municipality and not in the abutting owner, the latter cannot enjoin the use and occupation of the street by the railroad company, but is remitted to his action at law to recover any damages that he may sustain by reason of such occupation and use of the street.” To the same effect see the exhaustive note to the ease of Rasch v. Nassau Electric R. Co., 198 N. Y. 385 (91 N. E. 785, 36 L. R. A. (N. S.) 645, 823). The plaintiff being the owner in fee, subject to the public easement, of that part of Trade Street north of the middle line thereof in front of and abutting upon his real estate, the excavation in the highway near the sidewalk on the south side of the premises, for the purpose of .building the spur switch, evidences a “taking” of his property without just compensation within the meaning of Article XI, Section 4, of the Constitution of Oregon. 2, 3. The right of . a person to drive a team hitched to a carriage, or to control a vehicle upon a traveled street, or to haul by ordinary means his own goods thereon without let or hindrance, is common to all citizens who have occasion to use the highway for pleasure, profit or advantage. When, however, a person engages in the transportation of passengers or freight, or both, for hire, he is pursuing a special business, and in order legally to exercise that privilege the munici [219] pality may require of him the payment of a license fee. So, too, a city might by ordinance grant to a person, firm or corporation the right to transact any business which, without such permission, might be regarded in the nature of a nuisance. 4. Though a grant of such authority usually precludes any prosecution for a violation of the public right that is not malum in se, the immunity thus conferred does not relieve the grantee of the franchise from liability to an individual who, by a pursuit of the privilege, sustains some special injury separate and distinct from that suffered by the public at large: Sandstrom v. Oregon-Washington R. & N. Co., 75 Or. 159 (146 Pac. 803). 5. That the excavation in the street in front of and abutting upon the plaintiff’s real property, thereby interfering with ingress and egress on the south side, was a special injury to his estate in the land is unquestioned, and in such case a court of equity will intervene to protect the right of the injured party until it has been voluntarily relinquished or secured by judgment of condemnation: McQuaid v. Portland etc. Ry. Co., 18 Or. 237 (22 Pac. 899); Willamette Iron Works v. Oregon R. & N. Co., 26 Or. 224 (37 Pac. 1016, 46 Am. St. Rep. 620, 29 L. R. A. 88); Baines v. Marshfield etc. R. Co., 62 Or. 510 (124 Pac. 672); Bernard v. Willamette B. & L. Co., 64 Or. 223 (129 Pac. 1039). 6. The fact that plaintiff’s apartment house and dwelling are in a district devoted to great commercial enterprises in which the use of spur switches is absolutely essential to the successful operation of the business there conducted, cannot alter the legal principle involved. He is entitled to make such use of his own buildings as suits his convenience or gratifies his fancy, and, so long as he does not trench upon the public right, [220] he must he protected in the enjoyment of his prerogative. 7. This suit not only seeks injunctive relief, hut endeavors to obtain a recovery of the damages which are alleged to have been sustained by reason of the injury. The chief element of the detriment complained of is the alleged loss of rents which it is asserted might have been secured from a lease of the buildings, except for the proposed construction and maintenance of the spur switch. The evidence shows there has been quite a diminution of revenue from that source, but whether or not the loss of such money results wholly from the contemplated alteration of the street, or is due in part to the business depression which has obtained on the Pacific Coast, is problematical. In view of this doubtful condition, it is believed the cause of justice will be promoted by making an injunction against any further alteration of the street in front of the plaintiff’s premises temporary, and requiring the excavation to be filled until his right has been secured by compromise, or, if this cannot be obtained, then by condemnation when the amount of damages which he has suffered can be determined by a jury. In accordance with this view, the decree should be reversed and one entered here as indicated, and it is so ordered. Reversed. Mr. Justice Bean, Mr. Justice'Harris and Mr. Justice Benson, concur.