Foster Lumber Co. v. Arkansas Valley & W. Ry. Co.

We are asked on rehearing in this case to reverse the opinion rendered by this court on the original hearing, for the reason that it conflicts with the following decisions of the Supreme Court of the United States: Northern Transportation Company v.Chicago, 99 U.S. 635; Gibson v. United States, 166 U.S. 269, and Scranton v. Wheeler, 179 U.S. 141. The decisions of the Supreme Court of the United States upon rules of law were controlling upon the courts of the territory of Oklahoma at the time this case originated and was tried in the lower court, and if the decisions of that court above cited are applicable to the case at bar and the opinion heretofore rendered by us is in conflict with them, then our former opinion should be reversed and the judgment of the trial court affirmed.

In Northern Transportation Co. v. Chicago, supra, the damages sustained by the abutting property owner resulted from the construction by the agents of the city of a tunnel along one of its streets under the Chicago river where the river crossed said street. In the construction of the tunnel the city authorities materially obstructed the abutting property owner's access to his property from the street and his access to the river which his property adjoined. The court held that for this obstruction to his access the law afforded him no remedy, for the reason that such obstruction, caused by the act of the city in making public improvements, was not a taking of private property for public use.

In the cases of Gibson v. United States and Scranton v.Wheeler, supra, the interference with the riparian owner's access to the navigable waters resulted from public improvements made by the government or its agents. In each of these cases the improvements were made by the government solely for public use, and the effect of the opinions of the court in these cases is that the private right of the riparian owner to access to the navigable stream which his land adjoins is subordinate to the public right; that such right of access is subservient to the public right of navigation and the control of Congress over that right, and that if an injury occurs to his means of access by public improvements made by Congress in the exercise of its right to improve navigable streams, no violation of any right to him occurs, for the reason that such right of access ceases the moment it comes in conflict with the rights of the government to control navigable streams. But none of these decisions hold that the abutting owner's right of access is subordinate to the right of a railway company which constructs a steam railway upon a street under legislative authority, and, although this case has been re-argued upon rehearing and ably and exhaustively re-briefed by counsel, no decision of the Supreme Court of the United States in which it has been held that the abutting owner's access to his property may be destroyed in such manner without compensation has been called to our attention, in which that court was uncontrolled by a rule of property of a state court, and we think none exists.

There are decisions, however, from that court which follow the rule of property of state courts and hold that damages cannot be recovered where the construction of the railroad interferes with the access of the abutting owner where the title to the street is in the public. Meyer v. Richmond,172 U.S. 82, is one of such cases. That case arose in the courts of Virginia and was an action for damages resulting from the obstruction of an abutting owner's access to a street by a railroad built upon the street, not in front of the abutting property, but across the street to the north of it. The Supreme Court of Appeals of Virginia held that such obstruction was not a taking under the constitution and laws of Virginia, and this construction by the court of that state of the Constitution and laws of that state was as to the Supreme Court of the United States a rule of property which that court did not undertake to review. Mr. Justice McKenna, who delivered the opinion of the court, uses the following language:

"The substantial thing is not that one may be damaged by an obstruction in a street, — not that one may be specially damaged beyond others, — but is such damage a deprivation of property, within the meaning of the constitutional provision? According to the Virginia cases, an additional servitude may be said to be another physical appropriation, and hence another taking, and must be compensated. But the plaintiff's case is not within this doctrine, nor is there anything in the decisions of Virginia which make consequential damages to property a taking, within the meaning of the Constitution of that state. Decisions in other states we need not resort to or review. Those of this court furnish a sufficient guide.Transportation Co. v. Chicago. 99 U.S. 635; City of Chicago v.Taylor, 125 U.S. 161; Marchant v. Railroad Co., 153 U.S. 380;Gibson v. United States, 166 U.S. 269."

If the language quoted referring to other cases of the Supreme Court of the United States can be construed as an expression that the rule of that court in those cases is in harmony with the court of Virginia in holding that the obstruction to the access of the abutting owner is not a taking, then we have an expression of the Supreme Court of the United States which appears to indicate that the cases ofNorthern Transportation Co. v. Chicago and Gibson v. UnitedStates establish the rule contended for by defendant in error in this case; but our construction of the language used by the court is that the intention of the court in referring to those decisions was not to indicate that the rule of property adopted by the Supreme Court of Appeals of Virginia was supported by those decisions, but that the Supreme Court of Appeals of Virginia having held that the abutting owner had no right of access in the street which constituted property which could be taken in the manner complained of, then such damages as were sustained by the abutting owner were consequential damages, and that the cases cited support the rule that consequential damages do not constitute a taking of property. In discussing this question, in one of the cases referred to, the court said:

"The first proposition asserted by the plaintiff, that her private property has been taken from her without just compensation having been first made or secured, involves certain questions of fact. Was the plaintiff the owner of private property, and was such property taken, injured, or destroyed by a corporation invested with the privileges of taking private property for public use? The title of the plaintiff to the property affected was not disputed, nor that the railroad company was a corporation invested with the privilege of taking private property for public use. But it was adjudged by the Supreme Court of Pennsylvania that the acts of the defendant which were complained of did not, under the laws and Constitution of that state, constitute a taking, an injury, or a destruction of the plaintiff's property. We are not authorized to inquire into the grounds and reasons upon which the Supreme Court of Pennsylvania proceeded in its construction of the statutes and Constitution of that state, and if this record presented no other question except errors alleged to have been committed by that court in its construction of its domestic laws, we should be obliged to hold, as has been often held in like cases, that we have no jurisdiction to review the judgment of the state court, and we should have to dismiss this writ of error for that reason."

In determining, therefore, whether there is a difference between the abutting owner's right of access as against a railway corporation constructing its railroad upon the street under legislative authority and between such abutting owner's rights and the right of the public or of the government to improve the street for public purposes, we are compelled to resort to reason and decisions of the state courts for answer.

It is the doctrine of the courts of nearly all the states that an abutting property owner cannot recover for damages to his property resulting from change of grade in the street made by the municipal authorities under authority of law where there is no physical injury to his property. His right in the street is subject to the right of the public to grade and improve it for public highway, and the injury he sustains therefrom is not a taking. And this doctrine prevails whether the fee is in the abutting owner or in the public. Section 96, vol. 1 (2nd Ed.) Lewis' Eminent Domain; Sauer v. City of New York, 206 U.S. 536.

Two classes of cases have arisen in the courts under statutory or constitutional provisions similar to the one now under consideration. The first class consists of those cases where the title to the street was in the abutting owner, and the second class consists of those cases where the title to the street was in the public. There are some cases that hold that an abutting owner who owns the title to the street cannot recover the damages he sustains from the building of a railroad on the street in front of his property where it is built under legislative authority. Parry v. New Orleans M. C. R. R. Co., 55 Ala., 413; Mercer v. Pittsburgh, Ft. W. C. R. R. Co., 36 Pa. St. 340; Snyder v. Pennsylvania R. R. Co., 55 Pa. St. 340. But the doctrine of these cases is against the weight of authority. Section 115, vol. 1 (2nd Ed.) Lewis' Eminent Domain. The reasoning of the courts upon which they have established the general rule that where the fee is in the abutting owner there is a taking is not uniform. Many of the courts place it upon the ground that the location of the track of a railroad upon a street is an additional burden and servitude upon the owner's land for which he is entitled to additional compensation. Other courts place it upon the ground that it is an exclusive appropriation by the railroad company of the soil of the street to its own use and that, since the owner of the title has the right of use of the soil for all purposes not inconsistent with the easement in favor of the public, the act of the railroad company in placing its tracks upon the street is a taking, and compensation is allowed. But the courts, upon whichever ground they place the right of recovery, as a rule permit the recovery, not only for the additional burden or servitude upon the land of the abutting owner in the street or for the taking from him the use of the soil of the street to which he has the right to use except so far as it is in conflict with the right of the public, but to recover also for depreciation in the value of his abutting property. We do not, however, refer to this class of cases to discuss the reasoning upon which the courts have permitted abutting property owners to recover, but that it may be noticed that the decided weight of authorities, where the abutting property owner owns the fee to the street, makes a distinction between his right of ingress and egress over the street as against the public and his right therein as against a railway company building upon the streets under authority of law. His right as to the public is a subservient right, but as to the railway company it is a superior right, which may not be materially interfered with or destroyed without compensation. There is, however, great conflict among the decisions of the second class to which the case at bar belongs, and in some instances the decisions of the same court are irreconcilable. In some of the states, the rights of the abutting owner in the street, the title to which is in the public, are regarded as of the same degree as those of the public and no recovery is permitted for interfering with his right of egress and ingress over the street to his property where such interference occurs from the construction of a railroad upon the street under legislative authority; but the doctrine of the courts in all the following cases is sufficiently broad to permit a recovery where the abutting property owner's access to the street is destroyed or materially obstructed or interfered with: Reining v. New York,L. W. Ry. Co., 128 N.Y. 157; The Leavenworth, Northern Southern Ry. Co. v. Curtain et al., 51 Kan. 432; Atchison,etc., Ry. Co. v. Davidson, 52 Kan. 739; Williamette Iron Worksv. Oregon Ry. Co., 26 Oregon, 224; White v. Railroad Co.,113 N.C. 610; Adams v. Chicago, B. N. R. Co., 39 Minn. 286; Lammv. Chicago, St. P., M. O. Ry. Co., 54 Minn. 71; The Ft.Scott, W. W. Ry. Co. v. Fox, 42 Kan. 490; Central Branch U.P. Ry. Co. v Twine, 23 Kan. 415; The South Carolina Ry. Co. v.Steiner et al., 44 Ga. 546; Egerer v. The New York Central Hudson R. Ry. Co., 130 N.Y. 108; The Burlington MissouriRiver Ry. Co. v. Reinhackle, 15 Neb. 279; Callen v. ElectricLight Co., 66 Ohio St. 166; Theobold v. L., N. O. T. Ry. Co., 66 Miss. 285; The Indiana, B. W. Ry. Co. v. Eberle,110 Ind. 542; Pittsburgh, C. C. St. L. Ry. Co. v. Noftsger,148 Ind. 101. There are other cases which support or recognize the doctrine of these cases, but it is unnecessary to prolong this opinion by citing them or quoting therefrom.

The cases cited are cases that arose under statutes or constitutional provisions providing that private property shall not be "taken" for public purpose without compensation. In some of the states, subsequent to the decisions cited, statutes have been enacted or constitutional provisions adopted which extend the terms of the statutes or constitutional provisions theretofore existing by providing that private property shall not be "taken, damaged or injured" for public purposes without compensation. The decisions of the courts under these statutes or Constitution as amended are not applicable to the case at bar. The reasoning upon which the courts have permitted the abutting owner to recover when his access to his property has been materially interfered with is by no means uniform. Some of them do not place it upon the ground that there has been a taking of property, but that his right has been interfered with. In some of the states the rule is broader than in others. In some the building of the road upon the street entitles the abutting property owner to recover although the road is built upon the grade of the street; in others no right of recovery exists unless the construction of the railroad upon the street is such as to interfere with his right of access to his property; and in others there is no right of recovery unless the abutting owner's access has been entirely destroyed.

In Reining v. New York, Lackawanna Western Ry. Co., supra, the abutting owner recovered damages resulting from the railroad company's constructing an embankment upon the street in front of his property on which the company placed its railroad tracks. The Court of Appeals of New York said:

"It is no longer open to debate in this state that owners of lots abutting on a city street, the fee of which is in the municipality for street uses, although they have no title to the soil, are nevertheless entitled to the benefit of the street in front of their premises for access and other purposes, of which they cannot be deprived except upon compensation. The right of abutting owners in the streets is not, however, of that absolute character that they can resist or prevent any and all interference with the street to their detriment, or which can be asserted to stay the hand of the municipality in the control, regulation or improvement of the streets in the public interest although it may be made to appear that the privileges which they had theretofore enjoyed and the benefits they had derived from the street in its existing condition, would be curtailed or impaired to their injury by the changes proposed."

The right of the abutting owner to have free access over the street to his property and the relation of such right to the right of the public to make public improvements upon the street and to the right of agencies acting under legislative authority, in making improvements on the street other than for the purpose of a highway or street uses, is well expressed in Lewis' Eminent Domain, vol. 1, (sec. 91) p. 172, in the following language:

"But as all streets are established primarily for the public use and general good, the right of the public is paramount to the right of the individual. And so the private rights of access, light, and air are held and enjoyed subject to the paramount right. of the public to use and improve the street for the purposes of a highway. And, as these private rights are thus subject to the right of the public to use and improve as a highway, it follows that, when such uses or improvements are made, no private right is interfered with, and consequently no private property is taken. It follows also that, as these private rights are subject only to the use and improvement of the street by the public for the purpose of a highway, an interference with these rights by the use or improvement of the street for any other purpose or by any other agency, under legislative authority, is a taking of private property to the extent of such interference."

The three cases from the Supreme Court of the United States relied upon by defendant in error in its petition for rehearing which have been referred to supra are cases in which the riparian owner's access to the navigable stream or the abutting property owner's access to the adjoining street were interfered with by improvements made by the public and for the purpose of improving either the navigable stream or the street as a highway. The same author in the sentence preceding the above quotation says:

"Numerous cases, decided since the first edition of this work, establish beyond question the existence of these rights, or easements, of light, air and access, as appurtenant to abutting lots, and that they are as much property as the lots themselves."

This language is quoted with approval by the Supreme Court of the United States in Muhlker v. Harlem Railroad Co.,197 U.S. 544. That case, as well as others announcing the doctrine, is often referred to as the Elevated Railroad Cases, and supports the doctrine that the abutting owner's easement of light and air may not be interfered with by the construction of an elevated railroad in the street in front of his property under legislative authority without compensation. Able counsel for defendant in error contend that the rule in this class of cases is not applicable to the case at bar, and we are aware that there are expressions from some of the courts that such is the case, but to our minds it is mockery to say that a railway company, acting under legislative authority, may not take away or interfere with the abutting owner's easements of light and air without compensation, but that the same company may, without compensation to the abutting owner, construct upon the street in front of his property obstructions that destroy or materially interfere with his access to his property, the very means by which he may enjoy the other easements which the court holds the law protects him in the enjoyment of from the interference of such railway company or other agencies acting under legislative authority.

On this subject Mr. Lewis in his work on Eminent Domain, vol. 1, p. 233, says:

"Highways are established to accommodate the public in traveling from place to place. From time immemorial, prior to the discovery of steam, they were for the common use of every citizen, by any means of locomotion he chose to select. They were not used by one person in any way which was not open to all. No one had a private right or any exclusive privilege therein. It was free to all upon like conditions. Such being the character of the public highway, it was subject to use by any new means of locomotion which could be employed by all the public, and was not destructive of the old methods of travel. A carriage propelled upon the ordinary surface of the road by steam or electricity would be just as legitimate as a carriage drawn by horses. Such use would be equally open to every citizen. The railroad does not fall within the scope of such uses. It requires a permanent structure in the street, the use of which is private and exclusive. It gives to an individual or corporation a franchise and easement in the street, inconsistent with the public right. To hold that a railroad is one of the proper and legitimate uses of a street leads to the absurd consequence that a street might be filled with parallel tracks which would practically exclude all ordinary travel and still be devoted to the ordinary uses of a highway."

The fee in the street in the case at bar is in the public for street uses, and, upon a vacation of said street, the same would become the property of plaintiff. Blackwell, Enid S.W.Ry. Co. v. Gist, 18 Okla. 516. The construction of a steam railway upon the street, although a public use, and made by a private corporation engaged in a public service, is not a legitimate street use. It is true that the legislative department of a state may grant to a steam railway company the right to construct its tracks upon the streets of a city, or, as in this case, a municipality, under authority from the legislature, may grant such right, but such authority granted relieves the company only from liability to suits civil and criminal by the public, and does not authorize it to interfere with any of the private property rights of the abutting owners. It has only the effect to make that legitimate which would otherwise be a nuisance and actionable as such. If railway tracks are constructed under legislative authority upon the surface of the street at the grade thereof and the abutting owner's means of access are not materially interfered with, he cannot complain; but if, as in this case where five tracks of railroad have been constructed in the street in front of plaintiff's property, the nearest of which is so near the property line of plaintiff that teams cannot pass each other and so constructed, according to the testimony of one witness, as to render it almost impossible for plaintiff's lumber yard upon its property to be reached by vehicles, the railway is so constructed as to destroy or materially interfere with the abutting owner's means of ingress and egress to and from his lot, and the value thereof is destroyed or depreciated from such cause, its property is as effectually taken as if a physical invasion had been made.

We cannot say that the conclusion here reached is, numerically speaking, supported by the weight of the decisions from the state courts, but in the absence of any decision from the Supreme Court of the United States directly upon the question here involved, which, if it existed, we should feel it our duty to follow as controlling in this case, we are constrained to adopt that construction and follow that rule which to us appears to be supported by the best reasoning and that will best serve the purposes of justice. We therefore adhere to our former opinion.

Kane, C. J., Williams and Dunn, JJ., concur; Turner, J., concurs in result.