Lockwood v. City of Portland

RUDKIN, Circuit Judge (after stating the facts as above). The following propositions are so firmly established as to require no citation of authority in their support: First, subject to the limitations contained in the Constitution of the United States, and in its own Constitution, the power of a state to vacate public streets within its borders is plenary and absolute; second, this power may be delegated to municipal corporations; and, third, a court of equity cannot review the action of the municipal authorities in the exercise of the power thus delegated in the absence of fraud or a plain abuse of power. Measured by these rules, the objections to the vacation-proceedings cannot be sustained. The claim or suggestion that the requisite consent of; property owners has not been obtained is answered by the city charter. The finding of the city council on that question is made conclusive in a collateral proceeding such as this, and it was entirely competent for the legislative department to so provide. The claim, that the property vacated is not to be used for a public purpose is equally untenable. There is no such.requirement in the city charter or in the general-law. True, the charter provides that the petition — 483 — shall set forth the purpose for which the ground is proposed to be used; but there is no requirement that the purpose shall be a public one. When vacated, the ground may be used by the abutting owners for private purposes, as is usually the case. It may be used for public purposes, or it may not be used at all; but the authority of the city council does not depend upon any such considerations. Village of Bellevue v. Bellevue Imp. Co., 65 Neb. 52, 90 N. W. 1002. The principal contention of the appellant is that he purchased his lots by reference to a recorded plat, that by such purchase and conveyance he acquired a property right in every street dedicated to the public, and that of , this right he cannot be deprived without his consent or without compensation. The right thus asserted is a broad one, and requires careful scrutiny. The plat before us contains hundreds of lots and miles of streets, and if every lot owner has acquired the right thus asserted, it must be apparent that the authority to vacate streets in such a plat is a barren one, to say the least. But we are satisfied that any such claim is unfounded. Had the appellant here sought to enjoin the vacation of an unused street in some remote part of the plat, the absurdity of his claim would become at once apparent; and yet such a case differs in degree, and not in kind, from the one before us. In many of the cases cited, such as Steele v. City of Portland, 23 Or. 176, 31 Pac. 479, the question arose between the original owner, who filed the plat, and his grantee; but, whatever rights the purchaser may have or acquire as against the original owner, we are satisfied that no such right can be asserted as against the municipality. Substantially all the authorities agree that a lot owner cannot resist the vacation of a street under competent authority, or recover damages for such vacation, unless he shows a legal injury to his property, different in kind, and not merely in degree, from the injury suffered by the public at large. In this respect the appellant has utterly failed. He is the owner of four lots, or half a block, in the city of Portland. Two of these lots front on Eighth street to the west, and the remaining two on Ninth street to the east. Two of his lots also abut on Wasco street to the north. The portion of Eighth street sought to be vacated extends one block north from the north line of Wasco street. It will thus be seen that the appellant has free access to his property from all three sides, the same as before. He is simply denied the privilege of passing over Eighth street, between Wasco street and Halsey street; but that same privilege is denied to every other inhabitant of the city. The appellant may have occasion to use the street oftener than others, because of its proximity to his property, and for that reason his inconvenience may be greater than that of others; but all the authorities agree that this is a difference in degree, and not in kind. That a property owner, whose property is situate as is that of the appellant in this .case, has no standing in a court of equity to enjoin vacation proceedings by municipal authorities, or in a court of law to recover damages for such vacation, is fully established by the following authorities, among many others that might be cited.: Jones on Easements, §§ 342, 347; Lewis, Eminent Domain (3d Ed.) § 198; Hawley v. — 484 — Baltimore, 33 Md. 270; City of East St. Louis v. O’Flynn, 119 Ill. 200, 10 N. E. 395, 59 Am. Rep. 795; Freeman v. Centralia, 67 Wash. 142, 120 Pac. 886, Ann. Cas. 1913D, 786; Enders v. Friday, 78 Neb. 510, 111 N. W. 140, 15 Ann. Cas. 685; Hyde v. Fall River, 189 Mass. 439, 75 N. E. 953, 2 L. R. A. (N. S.) 269; Elliott, Roads and Streets (2d Ed.) § 878; Dillon, Municipal Corporations (5th Ed.) § 1160; Cummings Real Estate & Investment Co. v. Deere, 208 Mo. 66, 106 S. W. 496, 14 L. R. A. (N. S.) 822. Nor are we convinced that a different rule obtains in the state of Oregon. Sandstrom v. Oregon-Washington Ry. & Nav. Co., 75 Or. 159, 146 Pac. 803. The decree of the court below is therefore affirmed.