Barrett v. Union Bridge Co.

• Decision Date: 09 February 1926
• Citation: 243 P. 93,117 Or. 220
• Parties: BARRETT ET AL. v. UNION BRIDGE CO. [a1]
• Court: Oregon Supreme Court

243 P. 93

117 Or. 220

BARRETT ET AL. v. UNION BRIDGE CO. ^[a1]

Supreme Court of Oregon

February 9, 1926

In Banc.

Appeal from Circuit Court, Linn County; L. H. McMahan, Judge.

Suit by W. A. Barrett and another against the Union Bridge Company. Decree for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

J. P. Winter, of Portland, and J. M. Devers, of Salem (Winter & Maguire, of Portland, on the brief), for appellant.

E. B Seabrook, of Portland, and Gale S. Hill, of Albany (Malarkey Seabrook & Dibble, of Portland, and Hill & Marks, of Albany on the brief), for respondents.

RAND J.

This suit is instituted to restrain the Union Bridge Company, as sole defendant, from constructing or maintaining an approach to a public bridge, on a public street, in front of plaintiffs' premises in the city of Albany. The bridge spans the Willamette river at Albany, and is a part of what was designated and constructed by the state highway commission as a state highway between Albany and Corvallis. Plaintiffs, not having filed an undertaking therefor, failed to obtain an injunction restraining the construction of the approach, and the same, together with the bridge of which it is a necessary and essential part, has been substantially completed at great public cost and expense, partly before but mainly since, the commencement of the suit. The moneys used in the construction of the bridge were furnished and advanced by the state highway commission, the city of Albany, and the county of Linn, under an understanding and agreement entered into by them for said purpose. The defendant, in the construction of the bridge and the approaches thereto, was a public contractor, who had undertaken to construct and complete the same in accordance with certain plans and specifications prepared by the state highway commission. Plaintiffs' premises are situate within the corporate limits of the city of Albany, and close to the river bank, and have a frontage of 102 feet on Ellsworth street, and of 134 feet on Water street. On these premises, plaintiffs have a two-story concrete building, fronting on both of said streets, which building was constructed in conformity to the then established grade of said streets, for garage purposes, and has ever since been used by plaintiffs for said purposes. The approach is wholly constructed on Ellsworth street, and, as constructed, has an elevation in front of plaintiffs' premises above the grade formerly established on said street of 8 feet at its lowest point, and 17 feet at its highest point, and completely prevents all access by automobiles from Ellsworth street to and from plaintiffs' garage. The case is here upon an appeal by defendant from a decree given upon the final hearing of the cause, perpetually enjoining the defendant from completing the construction of the approach, and from maintaining the same in front of plaintiffs' premises.

In support of the decree, plaintiffs contend that their being deprived of their right to the use of Ellsworth street as a means of ingress and egress to and from their property, through the construction and maintenance of the approach, amounts to a taking of their property without compensation, and therefore violates the provisions of both the state and federal Constitutions, and entitles them, not only to the injunction prayed for, but to have the structure removed as a common nuisance. The Constitution of this state provides that private property shall not be taken for public use, without just compensation, nor, except in case of the state, without such compensation being first assessed and tendered. Article 1, § 18. The word "damaged" is not used. The improvement complained of is entirely within the confines of the street. There has been no invasion of plaintiffs' property in any physical sense; both the title and possession remain undisturbed. That the owner of property abutting on a public street has a right of access to and from his property by way of the street, and that this right is as much property as the land adjacent to the street, is unquestioned.

Streets are established to afford access, light, and air to the property through which they pass, and the right to access, light, and air is appurtenant to the property adjacent to the street, and is a part and parcel of it. Any invasion or interference with this right by a private individual, or by any private interest, even if done with the consent of the city, or the Legislature, is a taking of the property, for which compensation must be made. But the right of the abutting property owner is subject to the rights of the public to use the street for highway purposes. The law on this subject is stated in 1 Lewis, Eminent Domain (3d Ed.) § 120, as follows:

"Numerous cases decided since the first edition of this work established beyond question the existence of these rights, or easements, of light, air and access, as appurtenant to abutting lots, and that they are as much property as the lots themselves. But as all streets are established primarily for the public use and general good, the right of the public is paramount to the right of the individual. And so the private rights of access, light and air are held and enjoyed subject to the paramount right of the public to use and improve the street for the purposes of a highway. And as these private rights are thus subject to the right of the public to use and improve as a highway, it follows that, when such uses or improvements are made, no private right is interfered with and consequently no private property is taken. It follows also that, as these private rights are subject only to the use and improvement of the street by the public for the purpose of a highway, an interference with these rights by the use or improvement of the street for any other purpose or by any other agency, under legislative authority, is a taking of private property to the extent of such interference."

In many respects, the facts in this case are very similar to those in Brand v. Multnomah County, 38 Or. 79, 60 P. 390, 62 P. 209, 50 L. R. A. 389, 84 Am. St. Rep. 772. In that case an approach to the Madison street bridge, in the city of Portland, had been or was being constructed, which, when completed, would cut off and destroy plaintiffs' right of ingress and egress to and from that portion of their property abutting on Madison street, and all access to that portion facing the Willamette river. One of the principal cases relied upon by the court for its decision in that case was Willis v. Winona City, 59 Minn. 27, 60 N.W. 814, 26 L. R. A. 142, where an approach for a bridge across the Mississippi river "extended a considerable distance along the center of one of the streets of the city, and passed the plaintiff's property," a similar state of facts to that existing in the Brand Case. In Brand v. Multnomah County this court held that no liability attaches to a municipality "for consequential damages resulting from the fixing or establishment of a street grade, unless specially required to respond by some constitutional, statutory, or charter provision," and that the acts complained of was not a taking, within the meaning of article 1, § 18, of the state Constitution. In deciding that case, this court quoted with approval the holding of Mr. Justice Mitchell in Willis v. Winona City, supra, that--

"So long as there is no application of the street to purposes other than those of a highway, any establishment or change of grade made lawfully, and not negligently performed, does not impose an additional servitude upon the street, and hence is not within the constitutional inhibition against taking private property without compensation, and is not the basis for an action for damages, unless there be an express statute to that effect."

Nor do the facts in this case bring it within the inhibition of the federal Constitution. In Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820, 31 L.Ed. 638, the Supreme Court of the United States said:

"This court, in Transportation Co. v. Chicago, 99 U.S. 635, 641 , held that in making the improvement of which the plaintiff complained the city was the agent of the state, performing a public duty imposed by the Legislature; and that 'persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdiction, and with care and skill, is a doctrine almost universally

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