Brand v. Multnomah County
| Citation | 38 Or. 79,60 P. 390 |
| Parties | BRAND v. MULTNOMAH COUNTY et al. |
| Decision Date | 05 March 1900 |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.
Bill by David Brand against the county of Multnomah and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.
The facts attending the present controversy are, in brief, as follows: The plaintiff is the owner of lots 2, 3, and 4 in block 72 of the city of Portland, extending on the east to the Willamette river, and having appurtenant thereto the usual riparian rights and privileges. They are bounded on the west and south by Front and Madison streets. The grade of Front street was established by competent authority long prior to the erection of the bridge in question. That of Madison, from Front to the river, has never been established except as the authority given for the erection of such bridge and its western approach may have served for the purpose. The Columbia Street Bridge Company, a private corporation, was by an act of the legislative assembly approved February 26 1885, and amended February 25, 1889, granted the right, privilege, and authority to construct and maintain a bridge across the Willamette river, between the cities of Portland and East Portland, for any and all purposes of travel and commerce. Among other things, it was thereby provided: The corporation and its assigns were empowered to take tolls, but the county court of Multnomah county was authorized to fix and regulate the rates thereof from time to time as occasion seemed to demand. The bridge was constructed in pursuance of the authority thus granted, but at the time of its construction an open roadway, 14 1/2 feet in width, was left in the center of its western approach, leading from the eastern line of Front street down the incline on Madison street, giving ingress and egress to plaintiff's buildings situate on his lots on the river bank, which are much lower than the bridge approach. In November, 1891, the bridge committee appointed by authority of an act of the legislative assembly, filed in the office of the secretary of state February 18, 1891, purchased said bridge pursuant to the provisions of the act, and continued in the management and control thereof until about June 20th following, when the Multnomah county court assumed the management and control, in pursuance of an act of the legislative assembly adopted February 1, 1895, and has continued in such management and control ever since. In April the bridge committee, claiming to act in pursuance of lawful authority, planked over and closed up the said opening, and caused said west approach to be made even and solid. Before closing the opening or roadway the commission petitioned the common council of the city of Portland, praying its consent thereto, which was accorded, with a proviso, however, that the "commission restore the driveway if not satisfactory to property owners." The approach, since the closing up of said opening, has been kept and maintained in that condition to the present time, and the plaintiff has been and is now deprived of the means of ingress and egress with teams and vehicles to and from his said buildings by way of Madison street. The bridge has, ever since its completion, been used by the general public. The Columbia Street Bridge Company charged and received tolls for the use of the bridge up to the time the bridge committee acquired the same, ever since which time it has been free to the general public. The defendant, the East Side Railway Company, has a franchise for operating its street railway upon and over said bridge, and is now maintaining a double track thereon, and directly over the space formerly left open for the roadway. The western approach, extending from Front street to the main part of the bridge, is 261 feet in length, and is constructed so as to conform to the grade of said street. The plaintiff brings this suit against Multnomah county, the city of Portland, and the said East Side Railway Company, to enjoin each of them from maintaining the said bridge and the western approach thereof in its present condition, and to require them to reopen the said roadway from Front street to the plaintiff's water-front buildings. The defendants prevailed in the court below, and the plaintiff appeals.
W.T. Muir, for appellant.
J.M. Long and W.A. Cleland, for respondents.
WOLVERTON, C.J. (after stating the facts).
Primarily the state has paramount control over all the highways within its borders, including public streets and highways within the confines of municipalities. Whatever authority a municipality may enjoy or possess, pertaining to its streets and highways, must be derived from the legislative assembly through its franchise or charter; and such a corporation acts, if at all, through a delegated power emanating from the initial source. 2 Dill.Mun.Corp. (4th Ed.) §§ 680, 683; Winters v. George, 21 Or. 251, 259, 27 P. 1041; Simon v. Northup, 27 Or. 487, 501, 40 P. 560, 30 L.R.A. 171. Nor does the mere fact that the state has delegated certain powers to the municipality inhibit it from again resuming or exercising such powers. Hence it is said: "The legislature of the state represents the public at large, and has, in the absence of special constitutional restraint, and subject (according to the weight of more recent judicial opinion) to the property rights and easements of the abutting owner, full and paramount authority over all public ways and public places." 2 Dill.Mun.Corp. (4th Ed.) § 656.
The logical and cogent result of these principles is that the state, as well as the cities and towns to which it has previously delegated the requisite authority, may fix and establish the grade of the streets and public highways within the corporate limits of such municipalities. Whatever right the municipality may acquire in and about its public streets,--whether through dedication or by condemnatory proceedings,--or whatever may be the property interests which remain or are left vested in the owner of property abutting thereon, it has come to be settled, if ever it was seriously controverted, that they cannot be burdened with any additional servitude, other than that which properly and legitimately attaches to them as public streets and highways, without just compensation being made to the abutting lot owner. Willamette Iron Works v. Oregon Ry. & Nav. Co., 26 Or. 224, 37 P. 1016; Huddleston v. City of Eugene (Or.) 55 P. 868; Barney v. Keokuk, 94 U.S. 324, 340, 24 L.Ed. 224. The authorities are uniform to the purpose, however, that a municipality does not entail any liability 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. 2 Dill.Mun.Corp. (4th Ed.) § 686; Willamette Iron Works v. Oregon Ry. & Nav. Co., supra; Kelly v. Mayor, etc., 65 Md. 171, 3 A. 594. And that the authorized establishment of a street grade, although the change may result in consequential damages to the abutting property, is not a "taking," within the meaning of the clause of our constitution (Const. Or. art. 1, § 18) providing that "private property shall not be taken for public use." The doctrine is well illustrated by the case of Northern Transp. Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336, where the legal distinction is specifically drawn between the term "taken," as used in the constitution of the United States and the earlier state constitutions, and the phrase "taken or damaged," in the later ones. It is there said: "Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking, within the meaning of the constitutional provision." After the work complained of in that case had been substantially completed, the people of Illinois adopted another constitution, whereby it was ordained that private property should not be taken or damaged for public use without compensation; and, as thus adopted, it was held to be an enlargement of the common provision for the protection of private property. In a later case ( Chicago v. Taylor, 125 U.S. 161, 166, 8 Sup.Ct. 820, 31 L.Ed. 638), which directly involved its construction, it was held that it ...
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