Wood v. Phoenix-Tempe Stone Co.

• Citation: 275 P. 5,35 Ariz. 155
• Decision Date: 04 March 1929
• Docket Number: Civil 2716
• Parties: FRANK B. WOOD and CECIL WOOD, His Wife, J. M. McINTYRE and MARTIN GOLD, Appellants, v. PHOENIX-TEMPLE STONE COMPANY, a Corporation, THE LIGHTNING DELIVERY COMPANY, a Corporation, and CITY OF PHOENIX, a Municipal Corporation, Appellees
• Court: Supreme Court of Arizona

275 P. 5

35 Ariz. 155

FRANK B. WOOD and CECIL WOOD, His Wife, J. M. McINTYRE and MARTIN GOLD, Appellants, v. PHOENIX-TEMPLE STONE COMPANY, a Corporation, THE LIGHTNING DELIVERY COMPANY, a Corporation, and CITY OF PHOENIX, a Municipal Corporation, Appellees

Civil No. 2716

Supreme Court of Arizona

March 4, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Mr Thomas W. Nealon, for Appellants.

Messrs Kibbey, Bennett, Gust, Smith & Lyman, for Appellee Phoenix-Tempe Stone Company.

OPINION

LOCKWOOD, C. J.

This is an appeal from a judgment of the superior court of Maricopa county which in effect refused to enjoin the City of Phoenix from proceeding with the paving of Jackson Street, between Fourth and Fifth Streets. The facts involved in the case are substantially as follows:

Appellants are the owners of certain realty fronting south on said street, at present occupied by residences. The only means of entrance to and exit from said realty is Jackson Street, or the alley in the rear of the property. That portion of the City of Phoenix in the general vicinity of appellant's property is in a district which, although at present partially residential, is rapidly becoming a manufacturing and warehouse district. A railroad track runs down the center of the street, and up to the inception of these proceedings a certain portion of the street in front of appellant's premises had been used exclusively for a sidewalk, being separated from that portion used as a driveway by a ditch and row of shade trees.

The Lightning Delivery Company, a corporation, owns 250 feet fronting north on the street, and about October 13th filed with the city commission of Phoenix a petition for the paving of the portion of Jackson Street above referred to. On that day the commission adopted a resolution of intention to pave such street from the property line on the north to the property line on the south, thus destroying the shade trees the ditch, and the sidewalk above mentioned, and theretofore existing, and leaving Jackson Street in that block without any sidewalk, as distinct from the general surface of the street. The commission proceeded in accordance with the statutes covering municipal paving, and on November 24th the contract for the paving was awarded to the Phoenix-Tempe Stone Company, one of the appellees herein.

About December 10th for the first time appellants had actual notice of the contemplated paving. Promptly thereafter they presented a written protest against it to the commission signed by the owners of 350 out of 600 feet of the property abutting thereon. The petition was referred to the city manager for investigation, and on December 29th, appellants being represented before the commission by counsel, a resolution was adopted to lay over the matter for a week, "to see the contractor, and see if he will relinquish his rights in the matter." Apparently the contractor refused to relinquish any rights which it possessed, for on January 5th the city executed a formal contract with it in accordance with its bid, refusing any further hearing to appellants. On February 10th they brought suit, seeking to enjoin the commission and contractor from proceeding with the work. The matter was heard before the court sitting without a jury, and judgment was rendered against appellants and in favor of the city and contractor, from which judgment this appeal has been taken.

There are four assignments of error set up in appellants' brief, and seven propositions of law stated thereunder. We think, for the purposes of this case, they can be reduced to two. The first is that an abutting property owner is entitled to a reasonable space for sidewalks in the street on which his property faces, and the city cannot deprive him of that right, except by the exercise of the right of eminent domain. The other is that the Session Laws of the various legislatures in regard to municipal paving and the notice to be given to the owners of lands abutting such proposed paving passed since 1913 are unconstitutional. We will consider these propositions in their order.

The first point for us to determine in discussing this question is: What are the rights of a property owner upon an abutting public street? It is conceded without question that he has the right of ingress to and egress from his lot over and by means of the adjacent portion of the street, whether he owns the fee to the center of the street, leaving the public merely an easement of passage, or whether the title to the highway is vested in the public, leaving merely an easement in the owner. 44 C.J. 943. There is a sharp and irreconcilable conflict in the authorities, however, as to whether such ingress and egress necessarily includes the right to a sidewalk, as distinct from the general body of the street, or whether it is merely to the street as a whole. The leading cases supporting the former view are those of Georgetown v. Hambrick, 127 Ky. 43, 128 Am. St. Rep. 333, 13 L.R.A. (N.S.) 1113, 104 S.W. 997, and Tulsa v. Hindman, 128 Okl. 169, 55 A.L.R. 891, 261 P. 910. The vital part of the opinion in the first case reads as follows:

"The street was dedicated for ordinary street purposes, and it must be presumed the parties contemplated it was to be used in the usual way. In ordinary city streets there is a carriageway in the center and sidewalks on the side. The sidewalk is as necessary as the carriageway, and both are equally within the contemplation of the parties in the dedication. The city council, under its power to regulate and control the streets, may fix the width of the carriageway or the sidewalks, or determine how much space shall be given to each; but it cannot say that the whole street shall be used as a carriageway, and that no part of it shall be used as a sidewalk. The owner of the abutting property is entitled to have a reasonable space for sidewalk and the council cannot act arbitrarily. It can determine what is reasonable space, but in so doing it must exercise a fair judgment. If it fails to give a reasonable space for sidewalks and the proof is such as to show arbitrariness, the property holder is not without remedy."

In the second case the court reviews all the decisions bearing on the point, both pro and con, and says:

"According to the actions and proceedings of the various chambers of commerce, civic clubs, safety councils, and efforts of the newspapers and metropolitan journals the thoughts and efforts of serious men are directed at means of providing additional facilities for pedestrian traffic instead of abolishing what the people already have. Sidewalks are not only being retained, but footroads, over and under many streets, are being proposed and established. Several cities have already built many of these footways, primarily for the use of children going to and from school. If we are correctly informed, at least one city in...