Highbarger v. Milford

[339] The opinion of the court was delivered by CUNNINGHAM, J.: The plaintiffs’ claim is that when they purchased the land that they own fronting on Orange avenue, as a valuable and necessary appurtenant thereto they purchased the right to travel the entire length of that street, for the purpose of ingress to, and egress from, their property; that such right of ingress and egress became a vested one, and could not be taken from them by the legislature without due compensation. The defendant’s claim is that the legislature, representing the public, has a right to vacate streets and alleys dedicated to public use, and to abandon the same so far as the public are concerned, and that the plaintiffs could not maintain this suit because it appears that they have suffered no injury other and greater than has the general public. It must be conceded that when one purchases a lot or block of platted land fronting upon a street affording access thereto he obtains, also, as a part of the valuable rights thus secured, the right of passage over and along the street fronting such premises, for the purpose of ingress thereto and egress therefrom. This right is one that cannot be taken away from him by the public without due and proper compensation. It must be further conceded that, subject to such private rights and their substantial enjoyment, the public, acting through their representative, the legislature, may relinquish their right in and to public streets by vacating the same. So, in this case, we will be enabled to solve the matters of difference by the application to the agreed statement of facts of these fundamental principles. It seems fairly inferable from those facts that Fourteenth street was a public highway, duly dedicated as such; that it, with Orange avenue on the west, Fifteenth street on the north, and Hydraulic avenue on the east, constituted the highway boundaries of the [340] block of land in which plaintiffs’ land is situated, at the time they purchased their land; and that by means of such streets they were enabled to pass freely in all directions to and from their premises. This was a right in which they had a greater and more vital interest than had the general public, and it seems to us that any curtailment of this right is such a material abridgment of the vested and peculiar interests of the plaintiffs as to be beyond the constitutional power of the legislature. The defendant contends that as long as that part of Orange street upon which the plaintiffs’ premises abut is kept open, and as long as the plaintiffs have a means of ingress and egress by the more generally traveled highway, which it is here found that they have by Hydraulic avenue, they are injured in no peculiar sense by the closing of Orange avenue south of their south line. This claim is too broad. While we do not think that when one purchases a parcel of ground bounded, by a laid-out and dedicated street, in a given platted parcel of land, he thereby necessarily becomes vested for all time with the right to travel over and along all of the streets and alleys of such platted parcel of ground, or even all of the streets that it would be convenient for him to use, we do think that he obtains the right to the use of such streets as are reasonably necessary for the enjoyment of the land so purchased by him. These streets are ordinarily such as bound the block in which his land is situated, or such as furnish access to his property from either direction, and there is no reason to limit this ordinary rule in this case. So here, while we do not think that the plaintiffs, under the facts agreed upon, have shown their right to have Orange avenue kept open through its entire length south to Thirteenth street, yet they have a right to have it opened as far as the south line of Fourteenth street, and to have Fourteenth street opened east to Hydraulic avenue. This will give them [341] reasonably free access to, and egress from, their premises in all directions. To deny them this leaves them in a cul-de-sac, so far as a southern exit is concerned. The injustice of this was so apparent to the trial court as to lead it to decree an outlet twenty-five feet wide through defendant’s land, along plaintiffs’ south line; but this provision was entirely unauthorized and lacks much of being the adequate way furnished by Fourteenth street, which was opened to them at the time they purchased their land. The judgment of the district court is set aside, and the case remanded with instructions to the district court to enter an order permanently enjoining the defendant in error from closing up or obstructing that portion of Orange avenue north of the south line of Fourteenth street, and also that portion of Fourteenth street east of the west line of Orange avenue. Johnston, C. J., William R. Smith, Greene, Burch, Mason, Clark A. Smith, JJ., concurring.