Brand v. Multnomah County

• Decision Date: 17 September 1900
• Parties: BRAND v. MULTNOMAH COUNTY et al.
• Court: Oregon Supreme Court

62 P. 209

38 Or. 79

BRAND v. MULTNOMAH COUNTY et al.

Supreme Court of Oregon

September 17, 1900

On rehearing. Affirmed.

For former opinion, see 60 P. 390.

W.D. Fenton and W.T. Muir, for appellant.

W.A Cleland, for respondent Multnomah county. J.M. Long, City Atty., for respondent city of Portland.

WOLVERTON C.J.

A careful re-examination of the vital questions attending this controversy has brought us to the same conclusion expressed in the former opinion. The pivotal issue is whether the bridge, with its approach upon Madison street, constitutes an additional servitude, or has perverted the street to other than legitimate street purposes. If such is its effect, the plaintiff presents a substantial basis for a decree in accordance with the prayer of his complaint; otherwise not. There is but little, if any, conflict in the law, which is aptly and succinctly stated, with its proper limitations and distinctions, in Willis v. Winona City, 59 Minn. 27 60 N.W. 814, 26 L.R.A. 142. In that case the city, under authority of the state and national legislatures, constructed a bridge across the Mississippi river, the approach of which extended a considerable distance along the center of one of the streets of the city, and past the plaintiff's property, and the question arose whether it constituted an additional servitude, in determining which Mr Justice Mitchell says: "The doctrine of the courts everywhere, both in England and in this country (unless Ohio and Kentucky are exceptions), is 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. That this is the rule, and that the facts of this case fall within it, is too well established by the decisions of this court to require the citation of authorities from other jurisdictions. Lee v. City of Minneapolis, 22 Minn. 13; Alden v. Same, 24 Minn. 254; Henderson v. Same, 32 Minn. 319, 20 N.W 322; Yanish v. City of St. Paul, 50 Minn. 518, 52 N.W. 925. See, also, Northern Transp. Co. v. City of Chicago, 99 U.S. 635, 25 L.Ed. 336; Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457, 14 L.R.A. 370. The New York Elevated Railway Cases cited by plaintiff are not authority in his favor, for they recognize and affirm the very doctrine that we have laid down in Story v. New York El. Ry. Co., 90 N.Y. 122, but hold that the construction and maintenance on the street of an elevated railroad operated by steam, and which was not open to the public for the purpose of travel and traffic, was a perversion of the street from street uses, and imposed upon it an additional servitude, which entitled abutting owners to damages. Neither does Adams v. Railroad Co., 39 Minn. 286, 39 N.W 629, 1 L.R.A. 493, aid the plaintiff, for that case proceeds upon the proposition that the construction and maintenance of an ordinary commercial railway upon a street is the imposition of an additional servitude. Plaintiff also cites numerous cases as to what constitutes a 'taking' of private property. The law of those cases is unquestioned. There is no doubt that the acts of the city would amount to a taking of plaintiff's property, so as to entitle him to compensation, provided the use made of the street by the city imposed an additional servitude upon it but that is the very question in the case. Our conclusion is that the construction and maintenance of this bridge approach did not impose an additional servitude upon the street, but was a proper street use, and hence constitutes no basis for an action in favor of plaintiff for damages." This case affords a complete answer to the counsel's contention that there is a "taking" in the present instance, within the purview of the state and national constitutions, and, as the reasoning of the learned justice is so apt for our present purposes, we have taken the liberty to quote at much length from the opinion. The doctrine of the New York Elevated Railway Cases and of Adams v. Railroad Co., supra, is not questioned, but it is not applicable to this controversy. In those cases there was an additional servitude created,--in the former, by the construction of the elevated railway; and, in the latter, by an ordinary commercial railroad upon the streets. Other New York cases present apt illustrations of the distinction which obtains between the legal effect of a structure which constitutes an additional servitude and one which is effective merely in producing a change in the street grade. They hold that the construction of an ordinary railroad upon a street is an additional burden or servitude, for which compensation may be recovered, yet that the change of a grade upon lateral streets, made necessary to effectuate a convenient crossing of the railroad, does not constitute a...