Freeman v. City of Centralia

• Decision Date: 06 February 1912
• Citation: 67 Wash. 142,120 P. 886
• Court: Washington Supreme Court
• Parties: FREEMAN et al. v. CITY OF CENTRALIA et al.

120 P. 886

67 Wash. 142

FREEMAN et al. v. CITY OF CENTRALIA et al.

Supreme Court of Washington

February 6, 1912

Department 1. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Action by E. A. Freeman and others against the City of Centralia and others. Judgment for defendants, plaintiffs appeal. Affirmed.

John E Humphries, for appellants.

W. N Beal, Geo. T. Reid, L. W. Quick, and L. B. Da Ponte, for respondents.

CHADWICK J.

This is an appeal from an order sustaining a demurrer to a complaint. The appellants are owners of property in the city of Centralia. Magnolia street, Pine street, and Front street are streets running across the city, and over which appellants or some of them, have been accustomed to pass in going from their homes to the business part of the city of Centralia, which is located west of the main track of the Northern Pacific Railway Company. It is alleged in the complaint that the defendants, the officers of the city, are intending to pass an ordinance vacating a part of these streets, and that their purpose is to turn the vacated portions over to the railroad companies, which are made defendants herein, to be used for railroad purposes; that if this design is accomplished the streets will be closed to public travel; that no provision has been made for the payment of damages to these plaintiffs; and that the proposed action of the city authorities is void and unauthorized, and in contravention of the constitutional provision (article 1, § 16) that no property shall be taken or damaged without just compensation therefor. It is admitted that the several properties of the respective appellants do not abut or touch upon that part of the streets actually vacated.

It is contended that appellants have a right to the use of the streets upon which their property abuts for its entire length, and are entitled to compensation, as abutting owners, if any part of the street is vacated. Anthority upon the particular proposition advanced is divided; but this court has in several cases aligned itself with the great majority of American courts in holding that a property owner does not come within the rule of compensation, unless his property abuts upon or touches that part of the street which is actually vacated, or a special or peculiar damage is made to appear; or, to state the proposition in its elementary form, unless his injury differs in kind, rather than in degree, from that suffered by the general public. 15 Cyc. 665. 'The consideration of the question whether the abutting owner is specially and peculiarly damaged has resulted in a difference of opinion on the part of the courts; some courts being of the opinion that, under certain circumstances, the injury is special and peculiar, whilst other courts, under the same circumstances, have regarded it as only such as is sustained by the general public. The existence of the special and peculiar damage is, however, more readily recognized when the property abuts upon the particular part of the street that is vacated. Many decisions declare that, as a general rule, only property abutting upon the portion of the street closed is specially damaged by the vacation, and that only such abutter can recover damages or compensation for the taking of his property.' Dillon, Mun. Corp. (5th Ed.) p. 1842.

The exact question here raised was before this court in Ponischil v. Hoquiam Sash & Door Co., 41 Wash. 303, 83 P. 316. The court there said: 'There is some conflict of authority as to whether owners of lots not abutting upon that portion of a street actually vacated can recover damages. The current of authority seems to be against any such right of recovery, unless special damage is shown, as distinguished from that sustained by the public in general. 'Where a municipality attempts to vacate a street, property owners not abutting thereon have no grounds for objecting to the validity or regularity of the proceedings, nor the right to an injunction restraining such vacation.' 27 Am. & Eng. Ency. Law (2d Ed.) 114, 115. * * * In Heller v. Atchison, etc., R. Co., 28 Kan. 625, at page 628, Brewer, J., said: 'Where a party owns a lot which abuts on that portion of the street vacated, so that access to the lot is shut off, it is clear that the lot owner is directly injured, and may properly challenge the action. The closing up of access to the lot is the direct result of the vacating of the street, and he, by the loss of access to the lot, suffers an injury which is not common to the public; but, in the case at bar, access to plaintiff's lots is in no manner interfered with. The full width of the street in front and on the side is free and undisturbed, and the only real complaint is that by the vacating of the street away from her lots the course of travel is changed. But this is only an indirect result. There is nothing to prevent travel from coming by her lots, if travelers desire it. The way to the heart of the city by her lots is a little more remote than it was before; but still free passage is open to all who wish to pass thereby. No one is compelled to stay away. Access to the lots is the same that it was before, so that the injury is only the indirect result of the action complained of, and it is an injury which, if it exists at all, is sustained by all other lots along the street west of the parts vacated.'' This case has been followed in several cases ( Mottman v. Olympia, 45 Wash. 361, 88 P. 579; Meacham v. Seattle, 45 Wash. 380, 88 P. 628; Smith v. Centralia, 55 Wash. 573, 104 P. 797), and the principle recognized, without reference to these cases, in Murphy v. Chicago, Milwaukee & St. Paul Ry. Co., 120 P. 525, decided January 23, 1912, and Clute v. North Yakima, etc., Ry. Co., 62 Wash. 531, 114 P. 513.

The question of compensation for consequential damages was carefully considered in Re Fifth Avenue, 62 Wash. 218, 113 P. 762, a street grade case, and it was there held that, to recover damages, the property affected must abut upon the improvement.

Appellants quote the following from the Smith Case: 'Where, however, the effect of closing the street or highway is to close the only passageway a property owner has from his property to the main public ways, such an owner may properly challenge the action by a suit in court, even though he be not an abutting property owner.' But that case does not deny the authority of the former cases; it is expressly based upon them. It goes no further than to recognize the exception to the rule, as stated in the Ponischil Case; that is, that a recovery may be had, if the vacation interferes with the access to the abutter's property in such manner that he is specially and peculiarly damaged. The injury must be physical in its character. Smith v. St. Paul, etc., Ry. Co., 39 Wash. 355, 81 P. 840, 70 L. R. A. 1018, 109 Am. St. Rep. 889. See, also, Dillon, Mun. Corp. (5th Ed.) § 1160. But the rule is equally well settled that no compensation can be exacted, where access is preserved over other streets or ways. In other words, an added inconvenience is not a damage or taking, within the meaning of these terms as they are used in our state Constitution. Hall v. Lebanon, 31 Ind.App. 265, 67 N.E. 703; Mottman v. Olympia, supra. It is not seriously contended that the law is not settled against the appellants. The Mottman Case is identical with the case at bar; but it is said that our 'definition of an abutting owner has been construed too narrowly.'

Appellants rely upon the following cases: Alabama & Virginia Ry. Co. v. Turner, 95 Miss. 594, 52 So. 261; O'Brien v. Central Iron & Steel Co., 158 Ind. 218, 63 N.E. 302, 57 L. R. A. 508, 92 Am. St. Rep. 305; Chicago v. Baker, 86 F. 753, 30 C. C. A. 364; Borghart v. Cedar Rapids, 126 Iowa, 313, 101 N.E. 1120, 68 L. R. A. 306; Laurel Improvement Co. v. Rowell, 84 Miss. 435, 36 So. 543; Texarkana v. Leach, 66 Ark. 40, 48 S.W. 807, 74 Am. St. Rep. 68. The Turner Case is especially relied on, and from expressions used in the opinion it may be that the court would have been willing to hold on principle that a property owner has the use of a street for the whole length thereof, and from side to side; and that that use is such property that it cannot be taken without compensation. But it is more likely that its decision was really made to rest upon the statute (section 3336) of the Code of Mississippi. The power is there granted to municipalities 'to close and vacate any street or alley or any portion thereof'; and, further, 'that no street or alley, or any portion thereof, shall be closed or vacated except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby.'

The other cases are in line with our own decisions, as qualified in Smith v. Centralia. In the O'Brien Case, the obstruction was located about 200 feet east of the plaintiff's residence. There was no cross street or other outlet between the obstruction and plaintiff's property so that his egress and ingress to and from his property were 'wholly barred, cut off, and destroyed.' The distinction between the common right and the right of a private individual is pointed out, so that the case is in harmony with our present holding. In the Baker Case, the court held that in Illinois damages would be allowed if there was a special injury, and that the...