Willamette Iron Works v. Oregon R. and Nav. Co.

• Decision Date: 02 October 1894
• Citation: 37 P. 1016,26 Or. 224
• Parties: WILLAMETTE IRON WORKS v. OREGON RY. & NAV. CO.
• Court: Oregon Supreme Court

37 P. 1016

26 Or. 224

WILLAMETTE IRON WORKS v. OREGON RY. & NAV. CO.

Supreme Court of Oregon

October 2, 1894

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Suit by the Willamette Iron Works, an abutting property owner, to enjoin and restrain the Oregon Railway & Navigation Company from occupying a portion of the street in front of plaintiff's property with an approach to a bridge. The decree was in favor of the plaintiff, and defendant appeals. Affirmed.

W.W. Cotton and Snow & McCamant, for appellant.

J.F. &amp E.B. Watson, for respondent.

BEAN C.J.

This is a suit by an abutting owner to enjoin and restrain the defendant from occupying a portion of the street in front of plaintiff's property with an approach to its bridge across the Willamette river at Portland. The plaintiff's premises are situated on the west side of Third street, and are bounded on the south by G street, on the north by H street, and on the west by Fourth street, and occupying that portion of the property abutting on Third street is a two-story brick and iron building, used as a foundry and machine shops. Third street is about 66 feet wide, and runs northerly through the city to the north line of said H street. In 1887 the legislature granted to the defendant the right to construct and maintain a bridge, with proper and convenient approaches, across the Willamette river, between the then cities of Portland and East Portland for the purpose of travel and commerce, as a railroad, wagon road, and passenger bridge, and to charge and collect tolls and fares thereon. Laws 1887, p. 252, Subsequently the city of Portland, by ordinance, granted to defendant the right to build on Third street "a solid roadway and approach to said bridge from the north line of G street to the center line of H street, said approach to be on an ascending grade from G street and to be built as a solid construction, not exceeding thirty feet in width." In pursuance of the permission thus given by the legislature and the city of Portland, the defendant proceeded to and did construct from a point about 600 feet east of Third street a double-decked steel bridge across said river,--not, however, as a part of or extension of any public highway,--and from the upper deck thereof, which is used for wagon and passenger traffic, constructed an elevated roadway, substantially at right angles to Third street, over and across private property, to the east end of H street, where, by a curve, it was connected to an approach in Third street, as provided in the ordinance referred to. This approach is 30 feet wide, and occupies the middle of the street in front of plaintiff's property for about three-fourths of the distance north from G street, and then turns to the east on a curve so that at a point opposite the north line of plaintiff's property it is about 35 feet from the west line of the street, while at the south end, and for a greater portion of the distance along the block, it is only about 20 feet from the street line and about 8 feet from the sidewalk,--a space not sufficient for wagons to pass each other. At the junction of Third and H streets, and opposite the north line of plaintiff's property, it is about 13 1/2 feet above the street surface, and from that point descends southerly by a gradual descent, reaching the surface of the street at the intersection of Third and G streets, forming an effectual barrier to the crossing of that part of the street by vehicles. It is supported by timbers resting on the street surface, and is so constructed and timbered as to be practically a solid structure, necessarily constituting an exclusive and permanent occupation and appropriation to the use of the defendant of that portion of Third street covered by it. The decree of the court below was in favor of the plaintiff, and defendant appeals.

Counsel for defendant seeks to reverse the decree of the court below on the grounds (1) that the erection of the bridge and its approach in Third street, under legislative and municipal authority, violates no property rights of plaintiff, and consequently it is without remedy, although its property may be injured; and (2) the plaintiff's remedy, if it has any, is by an action at law to recover damages, and not by suit for an injunction.

But few questions have come before the courts in recent years involving larger pecuniary interests or of greater practical importance, or which have provoked more discussion, than those growing out of the enforcement by abutting lot owners of their right to compensation for the occupation and use of streets under legislative or municipal authority by private corporations for public use, under constitutions like ours which provide that private property shall not be taken for public use without just compensation. It is quite generally agreed that any proper exercise of governmental power over a street in a municipality, for street purposes, which does not directly encroach upon the abutting property of an individual, though the consequences may be to impair its use, is not a taking, within the meaning of the constitution, and will not entitle the adjoining proprietor to compensation, or give him a right of action. Cooley, Const. Lim. (5th Ed.) 671; Transportation Co. v. Chicago, 99 U.S. 535 . It is within this principle that changes of grade; the use of a street for a surface street railroad; the erection of lamps, hitching posts, telephone, telegraph, and electric light poles; the laying of sewer and water pipes; the crossing of streets over railway tracks by means of elevated viaducts,--are, when authorized by lawful authority, held damnum absque injuria, although the abutting owner may be seriously injured, and the value and usefulness of his property greatly impaired. This is upon the ground that individual interests in streets are subservient to those of the public, and that an adjoining owner received full compensation for such injury as might result to him or his grantees from the use of the street for proper street purposes at the time of the dedication or appropriation of the land therefor. But there is a limitation to legislative or municipal power over a street, which cannot be exceeded without invading the constitutional rights of abutting owners. An abutting proprietor is entitled to the use of the street in front of his premises, to its full width, as a means of ingress and egress, and for light and air, and this right is as much property as the soil within the boundaries of his lot; and therefore any impairment thereof or interference therewith, caused by the use of the street for other than legitimate street purposes, is a taking, within the meaning of the constitution, whether the fee of the street is in the abutting owner or not. He holds his property subject to the power of the proper legislative authority to control and regulate the use of the street as an open public highway, and hence any authorized use thereof, though a new one, gives him no cause of action. But such holding is not subject to the legislative power to divert the street from legitimate street purposes by authorizing a structure thereon which is inconsistent with its continuous use as an open, public street. Any structure on a street which is subversive of and repugnant to its use and efficiency as a public thoroughfare is not a legitimate street use, and imposes a new servitude on the rights of abutting owners, for which compensation must be made. Elliott, Roads & St. 526; Tied.Mun.Corp. 301; Lewis, Em.Dom. § 126; Booth, St.Ry.Law, §§ 80, 81; 2 Dill.Mun.Corp. §§...