Bostwick v. Hosier , 97 Or. 125 ( 1920 )

BURNETT, J.

1. The defendants contend that the plaintiffs were not concerned in the proceeding to vacate the portion of the streets mentioned because their property was not contiguous to the part to be vacated, and that the defendant Hosier was the only owner to be considered in the proceeding mentioned, because his was the only property that touched the strips to be vacated. It is apparent from the record that the parties bought the properties mentioned with reference to the plat of Stewart’s Addition. ' In other words, with their purchase they acquired at least the usufruct of the adjacent streets. It is axiomatic, as well as constitutional, that private property cannot be taken for private use. As early as the case of Willamette Iron Works v. Oregon R. & N. Co., 26 Or. 224 (37 Pac. 1016, 46 Am. St. Rep. 620, 29 L. R. A. 88, 1 Am. & Eng. R. Cas. (N. S.) 36), the question of occupancy of streets was under consideration, and the following language was used by Mr. Chief Justice Robert S. Bean, delivering judgment:

“But there is a limitation to legislative or municipal power over a street, which cannot be exceeded without invading the constitutional rights of abutting owners. An abutting proprietor is entitled to the use the street in front of his premises to its full width a means of ingress and egress, and for light and air, and this right is as much property as the soil within the boundaries of his lot; and therefore any impairment thereof or interference therewith, caused the use of the street for other than legitimate street purposes, is a taking within the meaning of Constitution, whether the fee of the street is in abutting owner or not.”

This principle is well fortified by the precedents cited in the opinion.

A similar doctrine was announced in Sandstrom v. Oregon-Wash. R. & N. Co., 75 Or. 159 (146 Pac. 803), where the defendant had fenced off a street which ran in front of the plaintiff’s premises and made a deep and impassable cut across the street, although immediately opposite the holding of the plaintiff. Likewise, in loose v. Willamette Valley Southern Ry. Co., 77 Or. 157 (150 Pac. 252), where the defendant proposed to build a high trestle along the street in front of the plaintiff’s premises, the principle was laid down that the right of the plaintiff in the street could not be interfered with in the absence of condemnation proceedings. The doctrine is discussed also in Kurtz v. Southern Pacific Co., 80 Or. 213 (155 Pac. 367, 156 Pac. 794), where the defendant undertook to lay a railway track immediately in front of the plaintiff’s premises without his consent. A similar principle is announced in Johnson v. Jeldness, 85 Or. 657 (167 Pac. 798, L. R. A. 1918A, 1074). See, also, Sloss-Sheffield S. & I. Co. v. Johnson, 147 Ala. 384 (41 South. 907, 119 Am. St. Rep. 89, 11 Ann. Cas. 285, 8 L. R. A. (N. S.) 226, and note).

2. Although the plaintiffs do not own immediately opposite the ground it is proposed to vacate, yet most of them have holdings in the nest adjacent blocks, so that their situation differs only in degree from that of the opposite abutter. The accessibility of their premises is pro tcmto impaired, which constitutes an injury to them not suffered by the general public.

In several of these cases the defendants were public service corporations entitled to exercise the right of eminent domain, under which, after having had his day in court and an opportunity to be heard, the plaintiff could have been compelled to surrender Ms property upon adequate compensation first assessed and tendered. Here the proposal is to abandon parts of tbe streets for the private interest of one of the defendants, and not for any public purpose. The property rights of the plaintiffs cannot be thus invaded. If the rights of abutting owners in a street cannot be taken without condemnation at the suit of a public service corporation, much more can they not be impaired in the interest of a private owner. The Circuit Court was in error in dismissing the bill, and a decree will be here entered according to the prayer of the complaint. Reveesed. Decree ENtbred.

Mr. Justice JohNs was present at the hearing, but did not participate in this decision. Mr. Justice BeNNEtt dissents.