Village of Sandpoint v. Doyle

• Decision Date: 09 May 1908
• Parties: VILLAGE OF SANDPOINT, Appellant, v. WILLIAM DOYLE, Respondent
• Court: Idaho Supreme Court

95 P. 945

14 Idaho 749

VILLAGE OF SANDPOINT, Appellant, v. WILLIAM DOYLE, Respondent

Supreme Court of Idaho

May 9, 1908

MUNICIPAL LAW-BRIDGES AND HIGHWAYS-RIGHT OF ABUTTING PROPERTY OWNERS-RIGHT OF INGRESS AND EGRESS.

1. Under section 850 of the Revised Statutes of this state, a bridge is a highway and subject to the laws applicable to highways.

2. Every property owner having a lot abutting on a street or highway has a special and peculiar right in that particular street or highway not common to other citizens, and such right is a property right appurtenant to his lot, and furnishes and affords him the means of getting to and from his property and thereby enjoying the common right of all the streets and highways in common with the community in general.

3. The owner of a lot abutting on a street or highway has the right of ingress and egress, and for the protection of such right has his cause of action, and for a municipality to prohibit and forbid him exercising his right to go to and from his property over and by way of such street, and to employ the means necessary to reach the street, would be to take his property without due process of law.

4. A municipality has a right to establish its grades and to fill in or bridge or plank its street and right of way so as to raise the surface to such grade, but by doing so it cannot preclude the abutting property owner from employing and using such reasonable means or making such reasonable improvements as may be necessary to enable him to go from his property to the street and exercise and enjoy the right of ingress and egress.

5. Where a municipality constructs a bridge 450 feet long across a small stream 25 feet wide and the adjacent ravine or depression in the natural surface of the ground, and such bridge is a height of 20 feet from the ground at the place where it passes an abutting property owner's lot: Held that it is without the power and authority to unqualifiedly prohibit and deny the property owner the right to erect a platform on his own lot to such height as to enable him to go from his building to the bridge and to connect such platform with the bridge by proper and substantial railings, and by such means and in such manner exercise the right of ingress and egress.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District for the County of Bonner. Hon. W. W. Woods, Judge.

Action by the plaintiff to enjoin and restrain defendant from constructing and maintaining a certain building and platform on his property adjacent to plaintiff's bridge. Judgment for defendant and plaintiff appeals. Affirmed.

Judgment affirmed, with costs in favor of respondent.

John A Steinlein, and Chas. L. Heitman, for Appellant.

A bridge is a highway. It is the duty of the municipality to keep in safe repair all bridges within its corporate limits. Any negligence in this regard by the municipality would render it liable for any damage that might be caused thereby. (City of Topeka v. Hempstead, 58 Kan. 328, 49 P. 87; Mischke v. City of Seattle, 26 Wash. 616, 67 P. 357.)

The use of a street, highway or bridge by an individual simply for his own convenience and accommodation, unaccompanied by public uses, is unauthorized, and essentially a nuisance, making not only the individual maintaining such nuisance liable, but the municipality also. (Mischke v. City of Seattle, supra.)

A municipality, charged with the duty of maintaining and keeping in repair streets and highways, cannot grant the use of any part thereof for private purposes. There is no such thing as a rightful, private, permanent use of public highways. (State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 123.)

The bridge in question is joined at both ends by a street which is a public highway, and by the terms of our statute is 50 feet wide. The public is entitled to the entire width of the street, including the bridge, and any addition to the bridge that may become necessary by reason of increased traffic. (1 Addison on Torts, 328, sec. 313; 2 Dillon's Mun. Corp., sec. 780, note, and cases cited; Giffen v. Lewiston, 6 Idaho 231, 55 P. 545.)

The trial court did not see or hear any of the witnesses, and therefore the appellate court is in as favorable position for judging of the truth of the witnesses and the weight of the evidence as the trial judge, and will consider the same as if originally heard in the appellate court. (Roby v. Roby, 10 Idaho 139, 77 P. 213.)

W. C. Jones, for Respondent.

Where the structure is in itself lawful and is being used in a lawful way, the municipality has no right whatever to interfere with its uses. (Wood on Nuisances, 2d ed., p. 803; Brown v. Perkins, 78 Mass. 89; State v. Paul, 5 R. I. 185.)

Every public bridge is a public highway, which all members of the community are entitled to use on equal terms, and all owners of abutting property are entitled to access to it as fully as they are entitled to access to any other part of the highway of which it constitutes a part. (Sec. 27, Elliott on Roads and Streets, 2d ed.; State v. Wood Co., 72 Wis. 629, 40 N.W. 381; Parker v. Boston & Maine R. R. Co., 3 Cush. 107, 50 Am. Dec. 709; Commonwealth v. Cent. Bridge Co., 12 Cush. 242-244; Rusch v. Davenport, 6 Iowa 443; Washer v. Bullitt Co., 110 U.S. 558-564, 4 S.Ct. 249, 28 L.Ed. 249; Willis v. Winona, 59 Minn. 27, 60 N.W. 814, 26 L. R. A. 142; Waldron v. Marsh, 5 Cal. 120.)

Every owner of property abutting upon a public highway has an absolute right of access to the highway, of which he cannot be deprived any more than he can be deprived of the abutting property itself, except by due process of law and on just compensation. (Elliott on Roads and Streets, 2d ed., secs. 695, 696; Brakken v. Minneapolis etc. R. R. Co., 29 Minn. 41, 11 N.W. 124; Cincinnati etc. Street Ry. Co. v. Cumminsville, 14 Ohio St. 523; Venard v. Cross, 8 Kan. 255, 256; Lostutter v. Aurora, 126 Ind. 436, 26 N.E. 184, 12 L. R. A. 259; Broome v. New York etc. Tel. Co., 42 N.J. Eq. 141, 7 A. 851.)

To prevent one erecting a lawful structure on his own land is a taking of property. (Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557.)

AILSHIE, C. J. Stewart, J., concurs. SULLIVAN, J., Dissenting.

OPINION

AILSHIE, C. J.

This action was originally commenced in 1903 by the village of Sandpoint against the defendant Doyle, charging him with constructing a building for the purpose of running and conducting a saloon business and in cutting the rails of a certain bridge across Sand creek and connecting his building therewith. The plaintiff charged defendant with certain acts committed and others threatened which would amount to a nuisance, and asked that he be restrained and enjoined from the further commission of such acts. A demurrer was sustained to the complaint and an appeal was taken to this court, and the judgment of the lower court was reversed. (Village of Sandpoint v. Doyle, 11 Idaho 642, 83 P. 598, 4 L. R. A., N. S., 810.) The cause was remanded with direction to the lower court to overrule the demurrer and take such further proceedings as might be consistent with the views expressed in the opinion. The cause was tried in the district court and findings of fact and conclusions of law and judgment were made and entered in favor of the village and against the defendant, restraining and enjoining the defendant as prayed for in the complaint. The defendant prepared and served his statement and bill of exceptions and had the same settled, and thereupon moved for a new trial, and his motion was granted and a new trial was ordered. The case thereafter came on for a new trial and upon stipulation of the attorneys for the respective parties the case was submitted to the trial judge upon the evidence that had been taken on the previous trial and no witnesses testified upon the latter trial. The case was submitted and taken under advisement by the court and thereafter findings of fact and conclusions of law were made and filed and judgment was rendered and entered in favor of the defendant and against the plaintiff, and this appeal is from the judgment.

It is necessary to observe here that the first trial took place before the Hon. R. T. Morgan, who was then presiding judge of the first judicial district, and a new trial was granted by him. Before the case came on for a new trial, Hon. W. W. Woods succeeded to the office of judge of the first judicial district and accordingly tried the case on retrial. Judge Woods, therefore, did not see the witnesses or hear them testify, and the entire case was made, so far as he was concerned, upon a paper record. Under such circumstances this court must examine the evidence and weigh the same in all respects as if the case had never been tried before, and will consider the evidence the same as if the case were being originally heard in this court. (Roby v. Roby, 10 Idaho 139, 77 P. 213; Morrow v. Matthew, 10 Idaho 423, 79 P. 196; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Van Camp v. Emery, 13 Idaho 202, 89 P. 752.)

It appears from the evidence that the bridge in question is about sixteen feet wide or 14 1/2 in the clear, and that it crosses what is known as Sand creek, and that the street at each end of the bridge is 50 feet in width, and the street over which the bridge is erected is the street connecting Railroad street with First street in the village of Sandpoint. This bridge is 450 feet long and varies from a height of 27 feet at the deepest place in the canyon or stream down to a point at each side of the canyon at which the bridge meets the ground. It is a wooden bridge, with posts and handrails on each side to protect pedestrians vehicles and animals from running or falling off the bridge. The stream is only about 25 feet wide, and...