¶0 1. MUNICIPAL CORPORATIONS -- Streets -- Power to Change Grade. The trustees of an incorporated town or village organized under the laws of Oklahoma Territory as extended in force in the state after its erection are authorized and empowered to lay out, open, grade, and otherwise improve the streets, alleys, sewers, sidewalks, and crossings therein, and to keep them in repair, and to vacate the same.
(a) Such trustees are authorized in the exercise of such municipal authority to change the grade of a street.
2. MUNICPIAL CORPORATIONS -- Improvements of Street--Injunction. The jurisdiction of equity may not generally be invoked by an abutting lot owner to restrain a municipality from making upon a street previously dedicated to public use, public improvements such as paving and the construction of sidewalks, until such abutting owner has first been compensated for any consequential damages arising solely from the change of a grade.
(a) Such abutting lot owner has an adequate remedy at law for such damages.
Error from District Court, Custer County; W. N. Maben, Judge.
Action by H. S. Edwards against J. N. Thrash and others. Judgment for defendants, and plaintiff brings error. Affirmed.
WILLIAMS, J.
¶1 The following questions are raised on this record: (1) As to whether the trustees of an incorporated town or village in the improvement of a street are authorized in the exercise of their municipal authority to change a previously established grade of a street, and (a) will an injunction lie to prevent such change until the abutting property owner has been previously compensated for any consequential damages arising therefrom?
¶2 Section 942, Comp. Laws 1909 (section 610, Wilson's Rev. & Ann. St. Okla., 1903), provides:
"Any city, town or village organized under and by virtue of a special act or charter or under and by virtue of any general law of Oklahoma is hereby authorized and empowered by and through its proper municipal officers to lay out, open, grade, and otherwise improve the streets, alleys, sewers, sidewalks, and crossings therein and to keep them in repair and to vacate the same."
¶3 Paragraph 9, § 847 (section 512, Wilson's Rev. & Ann. St. Okla., 1903), Comp. Laws 1909, provides that the board of trustees shall have the power "to lay out, open, grade, and otherwise improve the streets, alleys, sewers, sidewalks, and crossings, and to keep them in repair and to vacate same."
¶4 Section 531, Wilson's Rev. & Ann. St. 1903, provides that the board of trustees (of an incorporated town) shall superintend the grading, paving, and improving of streets and the building and repairing of sidewalks.
¶5 Section 24, art 2, of the Constitution of this state, provides:
"Private property shall not be taken or damaged for public use without just compensation. Such compensation, irrespective of any benefit from any improvements proposed, shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested. When possession is taken of property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of such compensation. The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question."
¶6 Section 15, art. 2, of the Constitution of Colorado, (1876) reads as follows:
"That private property shall not be taken or damaged, for public or private use, without just compensation. Such compensation shall be ascertained by a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be needlessly disturbed, or the proprietary rights of the owner therein divested; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use alleged be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public."
¶7 The only difference in the portion of this provision applicable to this case and the corresponding part of the provision of the Oklahoma Constitution is the addition to the Colorado provision of the word "needlessly."
¶8 In Denver & Santa Fe R. Co. v. Domke et al., 11 Colo. 247, 17 P. 777, this section of the Colorado Constitution was construed, wherein it is said:
"We shall assume, without, however, determining the matter, that the laying of the third rail and doing the business of a standard gauge trunk line is an additional burden or servitude imposed upon the street; also, that those acts may result in injury to the abutting lot owner, for which, under the Constitution, he is entitled to compensation. Should a court of equity at his suit, in view of the facts of this case, grant an injunction forbidding the acts in question? As we have already seen, the fee to Willow lane and Clark street is by law vested in the city in trust for the use of the public. It is not, and never was, in the present plaintiffs, who are purchasers of lots subsequent to the dedication of the streets. There is no evidence to show that the grants to them included the reversionary interest or reserved rights, if any such interest or rights there be, of the dedicator in this fee. If the street should be abandoned by the municipality, or for any other reason the trust should fail, and the fee pass out of the city, it would not revert to plaintiffs. Gebhardt v. Reeves, 75 Ill. 301. It follows, therefore, that the increased burden mentioned would not constitute an actual taking of plaintiff's property, though their peculiar interest in the street as abutting owners might entitle them to compensation for injuries inflicted. Besides, it is suggested that, where such a qualified fee in the city as we are now considering exists, 'the reversionary right of the owner of the fee in the surface of the street is too remote and contingent to be of any appreciable value, or to be regarded as property, which, under the Constitution, is required to be paid for when its use is appropriated by the public.' Spencer v. Railroad Co., 23 W. Va. 406, and cases cited. But where the fee of an individual is not sought to be taken, though an abutting lot owner, he cannot enjoin the construction and operation of a railroad merely because the damages to his premises are not compensated in advance, provided the company act under sufficient legislative and municipal authority. 1 High, Inj. (2d Ed.) § 637. * * * The authority for injunctive relief in cases like the one at bar must therefore be found, if it exist at all, in the eminent domain statute. Under a statute similar to ours in this respect, and with a constitutional provision in force substantially the same as ours, with the exception of the clause last above construed, the Supreme Court of Illinois denied this relief to abutting owners. It is held by that court that the corresponding statutory expression directing an assessment in condemnation proceedings, or compensation for damages to property not taken, must be construed as referring 'to contiguous lands of the same owner not actually taken.' Stetson v. Railroad Co., 75 Ill. 74; Patterson v. Railroad Co., 75 Ill. 588; Railroad Co. v. Schertz, 84 Ill. 135. The reasoning of these opinions on this point is satisfactory."
¶9 Section 21 of article 2 of the Constitution of Missouri of 1875 (Ann. St. 1906, p. 148) is as follows:
"That private property shall not be taken or damaged for public use without just compensation, Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner, subject to the use for which it is taken."
¶10 This provision, as far as it goes, is substantially the same as section 24, art. 2, supra. The case of Clemens v. Conn. Mut. Life Ins. Co., 184 Mo. 46, 82 S.W. 1, 67 L. R. A. 362, 105 Am. St. Rep. 526, was an appeal from the circuit court of the city of St. Louis perpetually enjoining the defendants from changing the grade of Arkansas avenue in said city between the north line of Cherokee street and the south line of McKean avenue, and from changing the grade of the alley running from Gravois road or Gratiot avenue to Arkansas avenue through a certain block in said city. Said provision of the Constitution was there considered. The case of Denver & Santa Fe R. Co. v. Domke, supra, is cited and quoted with approval, and it...
