Foster Lumber Co. v. Ark. Valley & W. Ry. Co.
| Decision Date | 09 March 1909 |
| Docket Number | Case Number: 1900 OK Ter |
| Citation | 20 Okla. 595,100 P. 1110,1909 OK 49 |
| Parties | FOSTER LUMBER CO. v. ARKANSAS VALLEY & W. RY. CO. |
| Court | Oklahoma Supreme Court |
¶0 ON REHEARING.
Former Opinion Adhered to.
¶1 We are asked on rehearing in this case to reverse the opinion rendered by this court on the original hearing, for the reason that it conflicts with the following decisions of the Supreme Court of the United States: Northern Transportation Company v. Chicago, 99 U.S. 635, 25 L. Ed. 336; Gibson v. United States, 166 U.S. 269, 41 L. Ed. 996, 17 S. Ct. 578, and Scranton v. Wheeler, 179 U.S. 141, 45 L. Ed. 126, 21 S. Ct. 48. The decisions of the Supreme Court of the United States upon rules of law were controlling upon the courts of the territory of Oklahoma at the time this case originated and was tried in the lower court, and if the decisions of that court above cited are applicable to the case at bar and the opinion heretofore rendered by us is in conflict with them, then our former opinion should be reversed and the judgment of the trial court affirmed.
¶2 In Northern Transportation Co. v. Chicago, supra, the damages sustained by the abutting property owner resulted from the construction by the agents of the city of a Tunnel along one of its streets under the Chicago river where the river crossed said street. In the construction of the tunnel the city authorities materially obstructed the abutting property owner's access to his property from the street and his access to the river which his property adjoined. The court held that for this obstruction to his access the law afforded him no remedy, for the reason that such obstruction, caused by the act of the city in making public improvements, was not a taking of private property for public use.
¶3 In the cases of Gibson v. United States and Scranton v. Wheeler, supra, the interference with the riparian owner's access to the navigable waters resulted from public improvements made by the government or its agents. In each of these cases the improvements were made by the government solely for public use, and the effect of the opinions of the court in these cases is that the private right of the riparian owner to access to the navigable stream which his land adjoins is subordinate to the public right; that such right of access is subservient to the public right of navigation and the control of Congress over that right, and that if an injury occurs to his means of access by public improvements made by Congress in the exercise of its right to improve navigable streams, no violation of any right to him occurs, for the reason that such right of access ceases the moment it comes in conflict with the rights of the government to control navigable streams. But none of these decisions hold that the abutting owner's right of access is subordinate to the right of a railway company which constructs a steam railway upon a street under legislative authority, and, although this case has been reargued upon rehearing and ably and exhaustively re-briefed by counsel, no decision of the Supreme Court of the United States in which it has been held that the abutting owner's access to his property may be destroyed in such manner without compensation has been called to our attention, in which that court was uncontrolled by a rule of property of a state court, and we think none exists.
¶4 There are decisions, however, from that court which follow the rule of property of state courts and hold that damages Cannot be recovered where the construction of the railroad interferes with the access of the abutting owner where the title to the street is in the public. Meyer v. Richmond, 172 U.S. 82, 43 L. Ed. 374, 19 S. Ct. 106, is one of such cases. That case arose in the courts of Virginia and was an action for damages resulting from the obstruction of an abutting owner's access to a street by a railroad built upon the street, not in front of the abutting property, but across the street to the north of it. The Supreme Court of Appeals of Virginia held that such obstruction was not a taking under the constitution and laws of Virginia, and this construction by the court of that state of the Constitution and laws of that state was as to the Supreme Court of the United States a rule of property which that court did not undertake to review. Mr. Justice McKenna, who delivered the opinion of the court, uses the following languages:
¶5 If the language quoted referring to other cases of the Supreme Court of the United States Can be construed as an expression that the rule of that court in those cases is in harmony with the court of Virginia in holding that the obstruction to the access of the abutting owner is not a taking, then we have an expression of the Supreme Court of the United States which appears to indicate that the cases of Northern Transportation Co. v. Chicago and Gibson v. United States establish the rule contended for by defendant in error in this case; but our construction of the language used by the court is that the intention of the court in referring to those decisions was not to indicate that the rule of-property adopted by the Supreme Court of Appeals of Virginia was supported by those decisions, but that the Supreme Court of Appeals of Virginia having held that the abutting owner had no right of access in the street which constituted property which could be taken in the manner complained of, then such damages as were sustained by the abutting owner were consequential damages, and that the cases cited support the rule that consequential damages do not constitute a taking of property. In discussing this question, in one of the cases referred to, the court said:
¶6 In determining, therefore, whether there is a difference between the abutting owner's right of access as against a railway corporation constructing its railroad upon the street under legislative authority and between such abutting owner's rights and the right of the public or of the government to improve the street for public purposes, we are compelled to resort to reason and decisions of the state courts for answer.
¶7 It is the doctrine of the courts of nearly all the states that an abutting property owner cannot recover for damages to his property resulting from change of grade in the street made by the municipal authorities under authority of law where there is no physical injury to his property. His right in the street is subject to the right of the public to grade and improve it for public highway, and the injury he sustains therefrom is not a taking. Arid this doctrine prevails whether the fee is in the abutting owner or in the public. Section 96, vol. 1 (2nd Ed.) Lewis' Eminent Domain; Sauer v. City of New York, 206 U.S. 536, 51 L. Ed. 1176, 27 S. Ct. 686.
¶8 Two classes of eases have arisen in the courts trader statutory or constitutional provisions similar to the one now under consideration. The first class consists of those eases where the title to the street was in the abutting owner, and the second class consists of those cases where the title to the street was in the public. There are some cases that hold that an abutting owner who owns the title to the street cannot recover the damages he sustains from the building of a railroad on the street in front of his property where it is built under legislative authority. Perry v. New Orleans M. & C. R. R. Co., 55 Ala. 413; Mercer v. Pittsburgh, Ft. W. & C. R. R. Co., 36 Pa. 340; Snyder v. Pennsylvania R. R. Co., 55 Pa. 340. But the doctrine of these cases is against the weight of authority. Section 115, vol. 1 (2nd Ed.) Lewis' Eminent Domain. The reasoning of the courts upon which they...
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