AIL ET UX. v. CITY OF PORTLAND, 136 Or. 654 (1931)

299 P. 306


Oregon Supreme Court.Argued April 1, 1931
Reversed May 19, 1931 Rehearing denied June 30, 1931

Appeal from Circuit Court, Multnomah County, ORLANDO M. CORKINS, Judge.

Action by L. Ail and another against the City of Portland. Judgment for defendant, and plaintiffs appeal.


Herbert L. Swett, of Portland (Dey, Hampson Nelson, and Richard R. Morris, all of Portland, on the brief), for appellants.

Frank S. Grant, City Attorney, and L.E. Latourette, Deputy City Attorney, both of Portland, for respondent.

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This action was brought by plaintiffs, as abutting property owners, for alleged damage to their real property arising out of the alleged closing of Grover street, in Caruther’s addition to the city of Portland. Caruther’s addition was platted and dedicated in 1872. Grover and Corbett streets are intersecting streets in that addition, Grover street extending in an easterly and westerly, and Corbett street in a northerly and southerly, direction. Plaintiffs are the owners of lot 8, block 116, Caruther’s addition to Portland, which has a frontage of 50 feet on Corbett street and 100 feet on Grover street.

The plaintiffs aver that, in August, 1927, the defendant tore up the sidewalk on Grover street adjoining their above-described property, and likewise tore up Grover street, a paved street to the north of their property, leaving an approximately semi-circular area completely enclosing the northern boundary of the lot and extending completely across Grover street to and past the property line on the north side of the street in such a manner as completely to shut off Grover street from traffic; that the boundary of this area was raised above the surface of the street by a cement curb several inches in height, and in this area grass and shrubs were planted; that, despite the plaintiff’s demands, defendant has failed, refused and neglected to tear up the obstruction, or to repave the street, or to reinstall the sidewalk, and the obstruction has remained “ever since said date”; that the above-described acts on the part of defendant were performed without the knowledge or consent of plaintiffs, and without any compensation to them therefor. They allege that their property has been damaged in the amount of $10,000, and pray for damages in that amount.

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The defendant, by its amended answer, avers that the alterations made by it in Grover street were made in connection with and as a part of the street alterations adjacent to the westerly end of Ross Island bridge, and for the safety and convenience of the public in using Grover street and streets adjacent thereto, and that no action whatever has been taken for vacating Grover street. As to the purpose of the alterations, it avers:

“That Grover street at said location sloped steeply from Corbett street easterly to Kelly street at a grade of approximately eight per cent prior to the building of Ross Island bridge, and approximately 12 per cent after the building of said bridge, the grade of Kelly street being lowered in order to carry Kelly street underneath the west approach of said bridge, and the steepness of said grade was avoided in said improvement by making a grade point about midway between Corbett street and Kelly street and carrying the roadway for vehicular traffic a short distance to the north of said lot 8 and swinging southeasterly to Kelly street and then north on Kelly street, thus making the roadway in the shape of an `S’ with an easy grade.”

That defendant, seeing the large amount of traffic on Grover and Corbett streets and other streets adjacent to plaintiffs’ property which would result from the construction of the Ross Island bridge, took the following action for the purpose of rendering these streets safe and convenient for traffic: By proceedings in eminent domain, the defendant laid out and established a street across the northerly portion of block 116, acquired and laid out into street uses the entire block between Corbett, Kelly, Grover and Wood streets, and acquired lots 8 to 13 of block 80, north of Grover street and east of Corbett; that, in order to prevent vehicles from coming upon the precipitous part

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of Grover street, it also constructed a curb in Grover street north of and adjacent to the plaintiffs’ property, and, to prevent the area enclosed by the curb from becoming unsightly, planted grasses and shrubbery therein. It avers that the plaintiffs have a right of access to their property over Grover street, and that, “by making the usual application to the city engineer and obtaining the usual permit for improvement work in street areas,” they may make such alterations in the curb, shrubs and grass as may be required therefor.

The defendant further alleges that, prior to the construction of the curb and the making of the other improvements in front of and adjacent to the plaintiffs’ property, it adopted plans and specifications for the improvements, and, in conformity with the charter and ordinances of the city of Portland, proceeded with the intended improvement; that the plaintiffs stood by and made no objection to such improvements, and that by reason thereof they are now estopped from asserting or claiming that such improvements were improper or that their property was damaged thereby. Defendant demands that plaintiffs’ complaint be dismissed.

As a result of the trial, the jury returned a verdict in favor of the defendant, and, in answer to questions submitted by the court, made special findings as follows:

“First Question: Did the defendant city cause the alterations in Grover street to be made as a part of the street improvements at and adjacent to Ross Island bridge so as to enable the public to more conveniently and safely use the streets at and near the bridge? Answer: Yes.

“Second Question: Do you find that the plaintiffs, as owners of the lot described in the complaint, may use Grover street whenever they desire by making

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runways across the curbs, sidewalk and park area, provided that such runways do not exceed 20 feet in width for each 50 feet of street frontage of the lots? Answer: Yes.

“Third Question: If you find that the alterations which the city caused to be made in Grover street constitute any benefit to the property of the plaintiffs, did such alterations result in a benefit to their property, and did such benefit exceed the damage, if any? Answer: No.

“Fourth Question: Does the alteration of Grover street constitute a part of the general street improvements that were made under authority of the city of Portland in connection with and as a part of the general plan of the Ross Island bridge, and the providing of suitable approaches therefor? Answer: Yes.”

From the judgment rendered in accordance with the verdict of the jury, the plaintiffs have appealed.


By assignment of error number 3, plaintiffs assert that the court erred in instructing the jury as follows:

“In cases where the uses of the street by the public are found by the city council to call for an arrangement that may have the effect of shutting off access to abutting property or rendering such access less convenient, the city may go forward and construct such improvement without being liable in any respect to the abutting property owner, though his property be rendered less valuable or the use thereof be less convenient.”

Assignment number 4 relates to an instruction reading:

“If, therefore, you find in this case that the city council adopted and approved the plan of this street arrangement as the same has been substantially carried out, you will not allow any damage to the plaintiffs that may be sustained as the result of such construction,

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even though it partially shuts off access to the property of the plaintiffs from the Grover street side, if it left plaintiff a convenient access to his property another way.”

The question before us has been the subject of much litigation in our own and in other jurisdictions. We note the case o Teague v. City of Bloomington, 40 Ind. App. 68 (81 N.E. 103), where the appellant Teague brought action against the city to recover damages for personal injuries alleged to have been received by having tripped and being thrown over a wire which was attached to the top ends of five small stakes that had been driven into the ground about four feet apart and left projecting about 12 inches above the edges of the intersection of two sidewalks at a crossing of two public streets in that city. The cause was put at issue, and on trial the defendant had verdict. The plaintiff assigned error of the court in overruling his demurrer to that portion of the amended answer which reads, in part, as follows:

“That, prior to the bringing of the action, Sixth street, at the point referred to in the plaintiff’s complaint, was improved by defendant, according to plans and specifications adopted by the defendant, as by law required, and that, in the construction of said street at said point, a brick sidewalk six feet wide was constructed along the north side thereof, abutting and adjacent to the property line on said side of said street; that immediately south of said sidewalk, at the point of said alleged injury, and abutting the south side of said sidewalk at said point, was a tree plot or grass plot about six feet in width, and extending westerly along the south side of said sidewalk from Maple street; that, at and prior to the time of the injury alleged by plaintiff, said city, in accordance with plans and specifications duly adopted, had improved Maple street at the point where the injury occurred, and, in accordance with said plans and specifications, had

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constructed a brick sidewalk six feet wide along the west side of Maple street at said point, which sidewalk abutted and was adjacent to the property line of the property owners along the west side of Maple street, and intersected said north sidewalk on Sixth street at the point where plaintiff was injured; that the stakes mentioned in plaintiff’s complaint as obstructions were situated in said tree plot; that one of said stakes was set in the tree plot near the corner of the intersection of said sidewalks; that others were set in said tree plot along the south side of said north sidewalk along Sixth street, and along the west side of said west walk along Maple street; that a wire was attached to the top of each and connected all of said stakes, and was so arranged as a protection for said tree plot, and to prevent pedestrians from crossing over and trespassing on the same * * *; that in laying out said streets said tree plot had been established for the purpose of beautifying said street, and was not intended to be used by pedestrians for travel, and that the same was shown by the plans and specifications adopted by the common council, and that said improvements had been made and maintained, in the manner set forth in said plans and specifications, for a number of years prior to the time of the injury.”

In ruling upon the demurrer to the foregoing, the court said:

“Grass plots are ornaments; and shade trees along the sidewalk give protection from the heat in summer. While they may be obstructions, yet, when ample width is left to answer the demands of travel, they are such obstructions as serve a useful purpose, and are not inconsistent with the object for which streets are made and maintained. Like a fence, a hydrant, a hitching post, telephone or telegraph poles, they are lawful obstructions. * * * It is not negligence per se to maintain them. It is the duty of a municipal corporation to use reasonable care to keep its streets in a safe condition; it has a right to devote the sides thereof to other useful purposes, provided it leaves an unobstructed

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way of ample width for pedestrians. If the city is liable in the case at bar, it is because it permitted a condition to exist which constituted a dangerous obstruction of a public highway.”

A leading case relating to the right to compensation of abutting owners by additional servitude on public streets is the early case of Willamette Iron Works v. Oregon Railway Navigation Co., 26 Or. 224 (37 P. 1016, 46 Am. St. Rep. 620, 29 L.R.A. 88). The legislative assembly of 1887 granted to the defendant in that case 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 thereon. Subsequently, the city of Portland granted to the defendant the right to build on Third street a solid roadway and approach to that bridge. The plaintiff sought injunctive relief, which was granted by the trial court. The defendant sought a reversal of the decree, on the ground, first, that the erection of the bridge and its approach to Third street under legislative authority violated no property rights of plaintiff and that consequently it was without remedy notwithstanding its property might have been injured; and, second, that the plaintiff’s remedy, if any, was by an action at law to recover damages, and not by a suit for an injunction. In determining the issue, Mr. Chief Justice BEAN, the eminent jurist who delivered the opinion for the court, said:

“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

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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 on Constitutional Limitations (5th Ed.) 671; Transportation Co. v. Chicago, 99 U.S. 635 [25 L.Ed. 336]. 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

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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 on Roads and Streets, 526; Tiedeman on Municipal Corporations, 301; Lewis on Eminent Domain, § 126; * * * 2 Dillon on Municipal Corporations, § 711 [and many other authorities].”

In Sandstrom v. Oregon-Washington Ry. Nav. Co., 75 Or. 159
(146 P. 803), this court speaking through Mr. Justice BURNETT, held that the plaintiff, whose property fronted on a dedicated street, and whose access thereto was cut off by defendant’s railroad excavation half a block away so that, though he had an approach from the west he had none from the east, suffered an injury not common to the general public but peculiar to himself, entitling him to an action for damages. That opinion holds that the plaintiff, having acquired the property with reference to the dedicated streets as appeared on the plat, was entitled to the use of those streets as an appurtenance to his premises. The learned jurist further said:

“In common with the general public residing in other parts of the city or state, he had a right to travel along Newark street without let or hindrance. For the invasion of the mere right to travel, as thus far stated, he is barred from recovery by the municipal legislation mentioned; but, as he passed along the street with

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other members of the general public, he had a privilege which no other person possessed, to wit, that of entering upon his close from that street, and prior to the construction of the road, in the exercise of his prerogative, he could approach his premises from the east as well as from the west. The defendant is in the position of saying to him, in substance:

“`Although you had the right, before we came upon the ground, to go to your residence both from the east and from the west along Newark street, yet, in our judgment, it is enough for you if you can reach it from the west, and we will therefore appropriate your eastern approach for ourselves.’

“This is a palpable invasion of the plaintiff’s right of access to and egress from his premises. If it is sound in principle to allow this without compensation in damages, the company could as well take from him both approaches.”

In support of this view, a multitude of authorities are cited.

In the case of Lowell et al. v. Pendleton Auto Co., 123 Or. 383
(261 P. 415), this court held that the owner of property abutting upon a street is entitled to have the street kept open and continued as a public street for the benefit of his abutting property, and, in support of such declaration, quoted the following from 3 McQuillin, Municipal Corporations, § 1322, where the author enumerates the rights of such owner as follows:

“(1) The right of access, often referred to as that of ingress and egress; (2) the right of light and air; (3) the right of view; (4) the right to have the street kept open and continued as a public street for the benefit of their abutting property; and (5), as stated in a recent New York decision, whatever adds to the value of the street to the abutter.”

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The question was again at issue in the more recent case o Cove Lodge v. Harris, 134 Or. 566 (294 P. 355), where this court approved the following from Lowell v. Pendleton Auto Co., supra:

“It is well established that, while additional uses may be imposed upon a street not submersive of or impairing the original street, such as subjecting a street to new modes of travel, or laying down gas or water mains; yet the rights of the public to use it as a street and of the adjacent lot owner to enjoy it as a means of ingress to and egress from his property cannot be materially impaired.”

One of the cases relied upon by the defendant is the case o Barrett v. Union Bridge Co., 117 Or. 220 (243 P. 93, 45 A.L.R. 521). That case is not controlling here. It involved the improvement of a public highway, whereas, as we have already stated, the instant case is based upon the alleged injury to the property of plaintiffs arising out of the construction of a nuisance in a public highway. In the Barrett case the court held that a bridge approach placed upon a public street is not an additional servitude upon the street so as to require compensation to the abutting owner. The opinion cites as authority, and follows the holding of this court in, Brand v. Multnomah County, 38 Or. 79 (60 P. 390, 62 P. 209, 50 L.R.A. 389, 84 Am. St. Rep. 772), to the effect that the right of an abutting owner to access between his property and the street is property within the rule that compensation must be made for encroachment thereon by a private individual, but that such right of access is subject to the right of the public.

Where a city, in grading a street, exercises care and skill in performing the work, and does not invade abutting property, any injury resulting therefrom to

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such property is damnum absque injuria. To grade a street or alley already dedicated to public use is not an exercise of the eminent domain so as to require compensation. It is not a new or an additional appropriation of private property to a public use, but an exercise of authority over what is already public property: Davis v. Silverton, 47 Or. 171 (82 P. 16).

The alleged damages sustained by plaintiffs’ property do not result from an invasion, nor from wilful negligence, nor from an actual taking of their property; but the plaintiffs allege facts — and support their averments with proof — that tend to show that the city has torn up pavements and reconstructed certain streets in a manner that affects the use and value of their property by shutting off access thereto from Grover street, which has the effect of altering the nature of their corner lot, valuable for business purposes, to an inside lot, and is a taking within the meaning of the Constitution: 2 Cooley’s Constitutional Limitations (8th Ed.), 1175; Skelton, Boundaries and Adjacent Properties, § 389, “Uses Which Are Diversions.”

In 5 McQuillin, Municipal Corporations (2d Ed.), at section 2115, it is said:

“Apart from imposition by written law, or by negligence, want of skill, or active wrongdoing, no municipal liability arises for consequential damages resulting from the construction of public improvements, including the construction of streets, and sewers. Where there has been an actual taking or damaging of property, liability arises without regard to the exercise of reasonable care in the doing of the work.

“In accordance with this general doctrine, it is well settled that a municipal corporation is not liable for consequential injuries to property resulting from a public improvement duly authorized and constructed in

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pursuance of legal provisions, without negligence or want of skill, unless such liability is imposed by constitution, or statute, or charter, as consequential damages to lots contiguous to a street or sidewalk which has been graded in a careful manner, or in the authorized change of the grade of a street, or in paving and curbing streets, or in establishing a grade for a street, and adopting plans for its improvement * * *.”

The plaintiffs in this cause do not contend that their corner lot has been injured by the construction of a lawful public improvement. The testimony shows beyond peradventure that the value of the lot was greatly reduced by the tearing up by the defendant of the sidewalk along the Grover street side, a distance of 100 feet, and the property was further injured by the destroying of the pavement on Grover street as alleged and the construction of a barrier across that street, thus closing it to travel at this point. The street was neither vacated nor abandoned as a highway; but it was obstructed as a passageway for travel.

Now, recurring to the instructions given by the court, and to others refused: The court did not err in refusing to give the plaintiffs’ requested instruction that the only question for the jury to determine was the question as to whether the plaintiffs had suffered any damage by the tearing up of the street and sidewalk. Nor do we believe that the court committed substantial error by giving abstract instructions. In general, the instructions constitute a fair and informative statement of the law applicable to the question at issue. The skillful attorneys representing the defendant seem to have overlooked the right of the abutting owner to have the street kept open and continued as a public highway: Lowell v. Pendleton Auto Co., supra, and authorities above cited. However, the charge to

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the jury that, if the city council adopted “the plan of this street arrangement as the same has been substantially carried out you will not allow any damage to the plaintiffs” as a result thereof even though it partially shuts off access to the property of plaintiffs from the Grover street side, if it left them a convenient access to their property another way, constitutes error. Manifestly, the city could not deprive the plaintiffs of their rights as abutting owners on Grover street by the construction of a nuisance thereon, and compensate them in full for that injury by reminding them that they yet owned their abutter’s rights on Corbett street: Sandstrom v. Oregon-Washington Ry. Nav. Co., supra. By this instruction, the court committed substantial error. It follows that this cause is reversed and remanded.

BEAN, C.J., BELT and CAMPBELL, JJ., concur.

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