Canady v. Coeur d'Alene Lumber Co.

• Decision Date: 23 December 1911
• Citation: 21 Idaho 77,120 P. 830
• Parties: HULDAH A. CANADY, Appellant, v. COEUR D'ALENE LUMBER CO., a Foreign Corporation, and CITY OF COEUR D'ALENE, a Municipal Corporation, Respondents
• Court: Idaho Supreme Court

120 P. 830

21 Idaho 77

HULDAH A. CANADY, Appellant, v. COEUR D'ALENE LUMBER CO., a Foreign Corporation, and CITY OF COEUR D'ALENE, a Municipal Corporation, Respondents

Supreme Court of Idaho

December 23, 1911

MUNICIPAL CORPORATION-VACATION OF STREETS AND ALLEYS-POWER TO VACATE-VALIDITY OF ORDINANCES - ESTOPPEL - OBSTRUCTION OF STREETS-DAMAGES-ABUTTING PROPERTY OWNERS-PROPERTY NOT ABUTTING-STATUTORY CONSTRUCTION-STATUTE OF LIMITATIONS.

(Syllabus by the court.)

1. Where by ordinance a town or village vacated certain streets and alleys in the year 1900, with the understanding that the C. Lumber Co. would establish and maintain a large lumber manufacturing establishment upon certain blocks owned by it in the city of C., and said company proceeded and expended in the establishment of said plant on said blocks and on parts of the streets vacated, over a hundred thousand dollars and the plaintiff had actual notice of the passage of such ordinances and the expenditures of money in the construction of said plant, and made no objection thereto until the commencement of this action on June 15, 1909, held, that she is estopped from maintaining this action.

2. Under the provisions of subd. 27, par. 15, of sec. 2238, Rev Codes, a municipality has the authority to create, open widen or extend any streets, avenue, alley or lane or annul vacate or discontinue such streets, alleys, etc., whenever it is deemed expedient for the public good.

3. Whenever a street or alley is vacated or discontinued it reverts to the abutting property owner.

4. A municipality in certain cases has the power to vacate portions of streets and alleys for the purpose of devoting such vacated streets or alleys to private uses.

5. The right to vacate a street or a part thereof is largely in the discretion of the body possessing that power, and such body may determine as to the public convenience and necessity of such discontinuance, and where there has been no glaring informality or illegality in the proceedings, its judgment should not be disturbed.

6. The proceedings in relation to the discontinuance or vacation of streets or alleys are not void on account of such board or body not having provided by ordinance some method or manner for de- termining any damages that might occur to property owners because of such vacation or discontinuance.

7. One whose property does not abut on the part of the street vacated by ordinance cannot maintain an action to enjoin the enforcement of the ordinance though he in common with others may be inconvenienced by such vacation.

8. While such vacation may cause one to travel further and in a more circuitous route in order to get to the business portion of the city, that is an inconvenience different in degree only from that suffered by other persons, and it furnishes no ground for injunctive relief.

9. One owning land not abutting on the part of the street vacated cannot recover damages, although such vacation may tend to lessen the value of his land.

10. The general doctrine is that one cannot maintain a private action for loss or damage which he suffers in common with the rest of the community, even though his loss may be greater in degree.

11. If the street so vacated or discontinued cuts off the property owner's ingress to or egress from his property, that would be a loss or damage not common to the rest of the community and he would have an action for the recovery of whatever damages he might sustain by reason of such vacation.

12. Held, that this action is barred by the statute of limitations.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robt. N. Dunn, Judge.

Action to have certain city ordinances declared null and void and for the removal of certain obstructions in streets, and to recover damages. Judgment in favor of the defendants. Affirmed.

Judgment affirmed, with costs of this appeal in favor of respondents. Petition for rehearing denied.

Edwin McBee, and Gray & Knight, for Appellant.

It is not competent for a city to authorize such use of a street dedicated as a street, as will destroy it as a thoroughfare for the public use. (Dubach v. Hannibal, 89 Mo. 483, 1 S.W. 86; Belcher Sugar Ref. Co. v. St. Louis Grain El. Co., 82 Mo. 124; Smith v. McDowell ex rel. Hall, 148 Ill. 51, 35 N.E. 141, 22 L. R. A. 393.)

Streets, alleys and highways are held in trust for the public for public purposes and no other. A common council has no power to authorize the permanent possession of a public highway, street or alley for private purposes. (Smith on Mun. Corp., sec. 1287; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Sims v. City of Frankfort, 79 Ind. 446; Adams v. Ohio Falls Car Co., 131 Ind. 375, 31 N.E. 57; Smith v. City of Leavenworth, 15 Kan. 81; Mikesell v. Durkee, 34 Kan. 509, 9 P. 278; Rev. Codes, sec. 2238, subds. 26, 27, par. 15.)

The city council can grant no easement or right therein not of a public character. (Snyder v. City of Mount Pulaski, 176 Ill. 397, 52 N.E. 62, 44 L. R. A. 407; Field v. Barling, 149 Ill. 556, 41 Am. St. 311, 37 N.E. 850, 24 L. R. A. 406; Hibbard v. City of Chicago, 173 Ill. 91, 50 N.E. 256, 40 L. R. A. 621.)

While the council or other municipal authority is vested with discretion, which is not ordinarily subject to review, yet it is not authorized to act arbitrarily or vacate a street for private purposes. (Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, 68 Am. St. 155, 51 N.E. 758, 42 L. R. A. 696; Marine Ins. Co. v. St. Louis I. M. & S. Ry. Co., 41 F. 643.)

There are no streets or highways by which plaintiff's property can be approached excepting those mentioned in the complaint, and which are blockaded by the defendants. By the maintenance of this blockade plaintiff is deprived of a constitutional right, and her property is being confiscated. This cannot legally be done either by executive decree, legislative enactment or judicial interpretation. (Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 749, 17 L. R. A., N. S., 497; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Cincinnati etc. Co. v. Cumminsville, 14 Ohio St. 523; Crawford v. Delaware, 7 Ohio St. 460; Pearsall v. Eaton County, 74 Mich. 558, 42 N.W. 77, 4 L. R. A. 193; Elizabethtown L. & B. S. R. Co. v. Catlettsburg Water Co., 110 Ky. 175, 61 S.W. 47; Rochette v. Chicago M. & St. P. R. Co., 32 Minn. 201, 20 N.W. 140; Pennsylvania Co. v. Stanley, 10 Ind.App. 421, 37 N.E. 288, 38 N.E. 421; Ridgway v. City of Osceola, 139 Iowa 590, 117 N.W. 974; Long v. Wilson, 119 Iowa 267, 97 Am. St. 315, 93 N.W. 282, 60 L. R. A. 720; Dana v. Rock Creek R. Co., 7 App. D. C. 482; Houston v. Kleinecke (Tex. Civ. App.), 26 S.W. 250.)

The plain statutory provisions of our law requiring that before streets can be vacated means must be provided by ordinance whereby property owners can be compensated for injuries which they have sustained were not complied with, and no pretense of such compliance was made. (Vanderburgh v. City of Minneapolis, 98 Minn. 329, 108 N.W. 480, 6 L. R. A., N. S., 741; Transylvania University v. Lexington, 3 B. Mon. (Ky.) 25, 38 Am. Dec. 173; Moose v. Carson, 104 N.C. 431, 17 Am. St. 681, 10 S.E. 689, 7 L. R. A. 548; Whitsett v. Union Depot & R. Co., 10 Colo. 243, 15 P. 339; Gray v. Iowa Land Co., 26 Iowa 387; Moffit v. Brainard, 92 Iowa 122, 60 N.W. 226, 26 L. R. A. 823; Glasgow v. St. Louis, 107 Mo. 202, 17 S.W. 743.)

The complaint states special injuries in which the public would not necessarily share or sustain, and states facts sufficient to authorize the plaintiff, a private person, to maintain an action to abate such nuisance. (Stricker v. Hillis, 15 Idaho 709, 99 P. 831, 17 Idaho 646, 106 P. 1128; O'Brien v. Central Iron & Steel Co., 158 Ind. 218, 92 Am. St. 305, 63 N.E. 302, 57 L. R. A. 508; In re Ruscomb St., 33 Pa. Super. Ct. 148; 2 Am. Dig. 1907, B. P. 1852.)

If the municipality had the right to vacate the streets under the statute, by the very terms of the provisions authorizing the vacation it is liable to the plaintiff for the injuries she may sustain by reason of the vacation. (Vanderburgh v. City of Minneapolis, supra; Phelps v. City of Detroit, 120 Mich. 447, 79 N.W. 640; Railroad Co. v. Heisel, 47 Mich. 393, 11 N.W. 212; Pearsall v. Board of Supervisors, 74 Mich. 558, 42 N.W. 77, 4 L. R. A. 193; City of Lewiston v. Booth, 3 Idaho 692, 34 P. 809; 2 Pomeroy Eq. Jur., No. 817; Eble v. State, 77 Kan. 179, 127 Am. St. 412, 93 P. 803.)

R. E. McFarland, C. L. Heitman, and R. L. Black, for Respondents.

The action of municipal authority in passing these ordinances was the exercise of a legislative discretionary power, and in the absence of any abuse thereof, such action will not be interfered with by the courts. The exercise of such power is not subject to judicial control. (McQuillin Mun. Ord., sec. 519; Brown v. Supervisors, 124 Cal. 274, 57 P. 82; 2 Abbott Mun. Corp. 1274, 1275; 3 Abbott Mun. Corp., 2499, 2513.)

The question of public utility and public polity is for the municipal authority alone to determine, and no evidence on this point is admissible. (Elliott, Roads and Streets, 665; Whetton v. Clayton, 111 Ind. 360, 12 N.E. 513; Lathrop v. Railroad, 69 Iowa 105, 28 N.W. 465; Cooley Const. Lim., 5th ed., 225; Glasgow v. St. Louis, 107 Mo. 198, 17 S.W. 743; Heinrich v. St. Louis, 125 Mo. 424, 46 Am. St. 490, 28 S.W. 626; Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145.)

Upon a discontinuance of vacation of a street, the ground covered by the street reverts to the owner of adjacent fee. (Elliott, Roads and Streets, 670.)

The validity of the ordinance of vacation does not depend upon an assessment of damages. (Brown v. Supervisor, 124 Cal. 274, 57 P. 82; Am. Bank Note Co. v. Railroad, 129 N.Y. 252, 29 N.E. 302; ...