Powell v. McKelvey

• Decision Date: 20 November 1935
• Docket Number: 6294
• Parties: L. B. POWELL, CHARLES I. HARDIMAN, GEORGE LUCAS, JAMES E. SHORTEN, E. H. DEWEY, INCORPORATED, a Corporation, and BOISE TRUST COMPANY, a Corporation, Receiver of ROBERT NOBLE ESTATE, a Corporation, Respondents, v. G. E. MCKELVEY, Commissioner of Public Works, and J. H. STEMMER, Director of Highways, and JAMES J. BURKE & CO., a Corporation, Appellants
• Court: Idaho Supreme Court

53 P.2d 626

56 Idaho 291

L. B. POWELL, CHARLES I. HARDIMAN, GEORGE LUCAS, JAMES E. SHORTEN, E. H. DEWEY, INCORPORATED, a Corporation, and BOISE TRUST COMPANY, a Corporation, Receiver of ROBERT NOBLE ESTATE, a Corporation, Respondents, v. G. E. MCKELVEY, Commissioner of Public Works, and J. H. STEMMER, Director of Highways, and JAMES J. BURKE & CO., a Corporation, Appellants

No. 6294

Supreme Court of Idaho

November 20, 1935

DEDICATION - STATUTORY DEDICATION - STREETS - EMINENT DOMAIN-CONSTRUCTION OF SUBWAY - STREET USE - RIGHTS OF ABUTTING PROPERTY OWNERS - CONSTITUTIONAL LAW - STATUTES-RETROACTIVE OPERATION.

1. Statute validating existing plats and statute providing that acknowledgment and recording of plats was equivalent to deed in fee simple of such portion of premises platted as were set apart for streets or other public use held to have impressed upon plat theretofore filed a dedication to public of streets outlined in such plat with same effect as though dedication had originally been placed upon such plat (I. C. A., secs. 49-2205, 49-2213).

2. While property owners, abutting on street which predecessor in title had dedicated to city or state for use as such owned fee of land to center of street, city or state had complete right to use of such land for street purposes (I. C A., secs. 49-2205, 49-2213).

3. Construction of street subway under railroad tracks held not to entitle abutting property owners in approach block to compensation because of deprivation of right to full use of street at present level, and diversion of traffic, since construction was a "street use" and not a "taking" of property, where subway was to be constructed in center of street and ingress and egress provided for such property owners by 18 1/2-foot roadways and 7-foot sidewalks being left open on each side of subway (Sess. Laws 1935, 2d Ex. Sess., chaps. 3-8; Const., art. 1 sec. 14).

4. Where approximately 150 trains per day passed over railroad tracks at street crossing and approximately 5,000 vehicles and 1,000 pedestrians per day passed over tracks at such crossing, elimination of grade crossing by construction of subway held not abuse of discretion by state department of public works, as respects right of abutting property owners in block in which approach was to be constructed to compensation for, or injunction against, diversion of traffic (Sess. Laws 1935, 2d Ex. Sess., chaps. 3-8; Const., art. 1 sec. 14).

5. Judgment in prior action to effect that law as it then existed did not empower state to make contract for construction of street subway under railroad tracks held not to preclude enactment of statute retroactively empowering state to make such contract, since legislature being empowered to authorize such construction in first place could now ratify it (I. C. A., sec. 39-2107; Sess. Laws 1935, 2d Ex. Sess., chaps. 3-8).

6. Abutting property owners in block in which approach to street subway under railroad tracks was to be constructed held, in view of facts that they were not parties to contract for construction of subway, and therefore had no property right in it and were also not entitled to compensation because of construction of subway, not entitled to question validity of retroactive effect of remedial statute authorizing execution of such contracts, even though particular contract in prior action between same parties had been declared invalid (I. C A., sec. 39-2107; Sess. Laws 1935, 2d Ex. Sess., chaps. 3-8).

7. Statute retroactively empowering state to make contract for construction of street subway under railroad tracks held not violative of constitutional provision prohibiting retroactive laws favoring certain parties, or imposing on people of any county or municipality a new liability (I. C. A., sec. 39-2107; Sess. Laws 1935, 2d Ex. Sess., chaps. 3-8; Const., art. 11, sec. 12).

8. Statute retroactively empowering state to make contract for construction of street subway under railroad tracks held not unconstitutional as special law legalizing unauthorized or invalid acts of an officer against the state (I. C. A., sec. 39-2107; Sess. Laws 1935, 2d Ex. Sess., chaps. 3-8; Const., art. 3, sec. 19).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. E. Winstead, Judge.

Action for injunction to restrain construction of a subway. Judgment for plaintiffs. Reversed.

Judgment reversed and remanded with instructions. Costs to appellants.

Bert H. Miller, Attorney General, Leo M. Bresnahan, Assistant Attorney General, Hawley & Worthwine, W. A. Brodhead and Frank F. Kibler, for Appellants.

The plaintiffs own property facing Eleventh Avenue South of the beginning of the subway and on each side thereof. Under the law they own a naked title from their property fronts along the sidewalk and street, but this naked title is absolutely subject to the right of the public to use the street for all traffic purposes and the improvement, reconstruction or change in the surface level of the street which in the judgment of the authorities will best serve the public traffic. Any change, therefore, in the street grade or any subway construction is in pursuance of the sovereign right to accommodate the public traffic and the property owner having no right to the continuance of any certain grade or condition of the street therefore suffers no compensable damage for such change and cannot bring an action to prevent the same. (Idaho State Constitution, art. 1, sec. 14; 20 C. J. 692, sec. 153; 2 Cooley, Constitutional Limitations, 8th ed., p. 1149; Crane v. City of Harrison, 40 Idaho 229, 232 P. 578, 38 A. L. R. 15; Hayes v. Handley, 182 Cal. 273, 187 P. 952; McCandless v. City of Los Angeles, 214 Cal. 67, 296 P. 895, 4 P.2d 139; City of Nampa v. Nampa & Meridian Irr. Dist., 19 Idaho 779, 115 P. 979; Idaho etc. R. R. Co. v. Columbia etc. Synod, 20 Idaho 568, 119 P. 60, 38 L. R. A., N. S., 497.)

The plaintiffs have the right to ingress and egress from their property, but the construction of the subway does not deprive them of that right, for as shown by the pleadings and the map attached to the defendants' answer, there is an 18 1/2-foot street and a 7-foot sidewalk left without change of the present grade, and a connection between these broad strips of highway and sidewalk remains at the same grade at the beginning of the subway and at the intersection of Front Street. The complaint itself shows that the plaintiffs are not deprived of reasonable egress and ingress to their property. The resulting inconvenience to abutting property is in common with that sustained by public at large. (29 C. J. 548, note 73; Canady v. Coeur d' Alene L. Co., 21 Idaho 77, 120 P. 830; Blanding v. City of Las Vegas, 52 Nev. 52, 280 P. 644, 68 A. L. R. 1273; Baltimore & Ohio etc. Co. v. Kane, 124 Md. 231, 92 A. 532, L. R. A. 1916C, 433; Hyde v. Fall River, 189 Mass. 439, 75 N.E. 953, 2 L. R. A., N. S., 269; Long v. Wilson, 119 Iowa 267, 93 N.W. 282, 97 Am. St. 315, 60 L. R. A. 720; Dantzer v. Indianapolis etc. Co., 141 Ind. 604, 39 N.E. 223, 50 Am. St. 343, 34 L. R. A. 769.)

The legislature in 1893 passed an act validating all plats theretofore filed regardless of irregularities or omissions in the form of acknowledgments or certificates thereto. (1893 Idaho Sess. Laws, sec. 102, at p. 129.)

The special session of the legislature validated contracts which had been made without authority and among such contracts so validated would naturally fall the contract with James J. Burke & Company under consideration in this case. (2d Extraordinary Session of the Twenty-third Legislature 1935, chap. 3, p. 9; Oregon Short Line Ry. Co. v. Clark County Highway Dist., 22 F.2d 681; Charlotte Harbor & Northern Ry. Co. v. Wells et al., 260 U.S. 8, 43 S.Ct. 3, 67 L.Ed. 100; Smith, Com. on Statutory Construction, sec. 267.)

Richards & Haga, J. R. Smead and F. A. Hagelin, for Respondents.

The owner of an abutting property has a special easement in the street in front of and near his property, different and distinct from the public easement therein.

He has the right to have that part of the street left open and unobstructed to its full width, for purposes of ingress and egress to and from his property, not only for himself, but that the public, his "patrons, clients and customers," may also have such free, unobstructed access.

This is particularly true where a place of business has been built on such lot, built and long put to use with reference to, and by means of, such street as it existed and has existed during the time of such use. (McQuillin, Mun. Corp., sec. 1426; Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945, 17 L. R. A., N. S., 497; Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 107, 286 P. 353; Brazell v. City of Seattle, 55 Wash. 180, 104 P. 155.)

If the abutting owner's easement of access is taken, or materially lessened or interfered with by obstruction, this is definitely a taking of private property within the meaning of the Constitution. (McQuillin, sec. 1589; Lewis, EmDomain, sec. 200; Brazell v. City of Seattle, supra; Illinois Cent. R. Co. v. Moriarity, 135 Tenn. 446, 186 S.W. 1053.)

Laws are retroactive or retrospective, the terms being treated by the courts as synonymous, where they take away or impair vested rights, create new obligations, or impose new duties, abrogate an existing right of action or defense, or give a past transaction a different legal effect than it had before the law was enacted. (Sturges v. Carter, 114 U.S. 511, 5 S.Ct. 1014, 29 L.Ed. 240; Evans v. City of Denver, 26 Colo. 193, 57 P. 696, 697; Ross v. Lettice, 134 Ga. 866, 68 S.E. 734, 137 Am. St. 281; Los Angeles Bond & Securities Co. v. Heath, 120 Cal.App. 328, 7 P.2d 1089, 1091.)

The legislature is without power or...