The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-08-05

eeaesls to The plafnu6 for said iniury ana
oamaee, nor have any steps wnsfever toward 8.
cerselnings making o. paying for the same
- saken, nor are the same contemplated by
the aid city Of Seattle
undw the facts q herein found, has The plain
uu nsnn - guaranteed by the constitution.
been violated? This requires us 70 construe
sscuon 70 article Of the constitution OF our
stete The portion applicable is mo private
property shall b taken or damaged for public
o. private use without just compensation hav-
ing been mt made or paid into court for the
Has plaintirs private properly been damaged
ior public use7 In deciding this : few pre-
nm1nary statements may materially assist In
properly and intslligently applying conflicting
eutnouteA One whose property was injured
~ municipal corporation without negligence
or cerelessness, had no remedy for the injury
onless some portion of che property was actu-
any taken; this was the general rule. Under
FMS general rule hardships arose: under it cor
poratlons enjoyed privilege ana immunity not
enjoyed BY Individuals. This was the old law
the mischief The remedy was frst applied BY
the people Of Illinois In 1870 In framing 1 new
constitution, and the people in neatly every
state, II not every state Of the Union, framing :
new constitution sinse thu have in their con-
sututson placed municipal and otner corpora
tons upon the same plane with indiyiduals az
regards liabilities for injury 70 property and
makes such corporation liable where an in
oiv1dual was liable st common law" Penn
giTania Railroad Company va Hppincots, ll6
Pa St. az; 8. c. 2 American stale Reports. GA.
pennsylvania Railroad Company va Marchont.
iI9 Pa. ST.. 81; s. c. American State Reports,
$751;
Some states. a. Pennsylvania and Allah ma.
nave restricted or limited to properly taken,
mr. 10 rad fvf IN.
largement OF their works, highways or improve
mentf. but the greater nun Der, including our
state. have no such limitation, restriction or
qualification, simply the broad and unqualified
e m "or damage" Applying then, the rule for
interprs ting statutes the old law, the mischief.
ana the remedy we are aided in the true con-
struction OF the constitutional provision under
consideration This provision being in the
nature OF remedial statute q liberal con true
ton must be given 50 as to eradicate and rem
eoy the evil the people were smarting under
by reason OF the general rule
There can be no damag without IN injury;
both must concur TO give Cause OF action. The
word ".njury" denotes the Illegal act ana the
term damages" means the sum recoverable as
amends for the wrong The law has aiways
recognized the difference between the things
described for 1t Ia Often declared that no action
wiii ne because the act is damnum absque tn
jurid- Mote, 50 American Reports 352l
properly, ne can sustain no injury, hence no
damage, therefore, has the plainIlf any private
right OF interest that has been injured and
damaged?
The private rights - an abutting owner,
which plaintiff complains are injured and dam
aged, are right of access AID fright OF lateral
support" As to righs OF access the contention
Is that II IL not damaged Within the meaning of
the law, because egress and ingress to the prop
erty still remains, though 1t may not be "a con-
ventent or easy after the change OF grade as
now. There may be some lore, in this position,
and was It the only question Involved we would
enter more fully into its examination. The pri-
vafe right Of access IL subject to the right of
public Improvement, and when such acc s. is
rendered le>s convenient BY the exercise of that
right BY the public, the owner has no legal
ground of complaint Lewis on Eminent Do
main. Sec. lo0
Bat this right of access is based on the fact
that the street Is open, In existence az street
The right OF access il peculiar right incident
70 the abutting property by reason Of its 20
AUDITING on the street. aud the very moment the
strip OF land 10 In existence as street that mo-
ment the right of access is . tangible, living
right "One OF the recognized uses and pur-
poses of establishing streets 10 to ford access
and frontage to the property. With
the establishment Of q street there attaches to
the adjacent property ~ appurteaant to. and
parcel Ut it, the private right faccess." Lewis
on Eminent Domain, Sec 100l
"The owner Of an abusting lot has appurte-
nant to his lot an interest or easement in the
street in front of it. which is entirely distinct
from the interest Of the public" adams W.
CHICAGO B. q n. BY. Co., 80 Northwestern, GO; 8
C., l. A. R., 495, and Gases cited.
ssThe sbutting lot owner has private right in
the street which extends to the necessity of &C.
cess." "Access to the lot is only Que of the d.
rect advantages which the street affords TO it,
Ibid 496.
And this principle is fully sustained in the
celebrated elevated railroad cases. 90 New York.
122; l04 New York, 26s: followed ana applied by
the United States circuit court in New York
National tank va New York Elevated Railroad
O mi any, "a Federal Reporter Ia See aso
Grand Rapids and Indiana Railroad Company
We. Heisei, 81 American Reports, Sl2, and cases
cited therein. TERRA Haute & l. r Co vs.
Bissel. Northeastern. l4S and note. Chicago X.
n. & Railroad Co. VI. Hszele, AZ Nor hwestern. %
and note. Adams vs. Chicago B. q Railroad
Co. IL American State Reports, GA and note.
Pearsali vs.. supervisor Of Eaton county. l. A..
R.. fy3. note.
In the last two cases, held that tine conssitu-
tioDsl proviso applied. The first under dam
age" and latter under taken" proviso.
Generally one Of the direct advantages and re-
suits which street affords to lot AUDITING on
the street lie the access thereto, and hence the
intrinsic value OF the right of access. but under
the peculiar surroundings of plaintiffs property
instead OF such an advantage and result from
the grading and improving OF Jsfferson street Il
is the very opposite. Prior thereto and accord
Ing TO the natural surface, there IL not only ae-
cess, but easy and natural. The improvement p
will not alone make the access less convenient,
bat by reason thereof constitute large element
In d, preciaion OF the market and rental value,
peculiar to the plsinti Il alone.
II has been said that al times cases srise which
are decided without any precedent, but on
reason and common sense, which is law. We
think a. bearing on the question OF the right OF
accezs, its injury and damage, this 10 one Of
these eascs.
As to right OF lateral support, the parties to
this action are like the authorities, absolutely
tive and the defendant corporation, with equal
strength, the negative. Whether or not the
abutting owner has this right the authorities sre
numerous, but not in accord. Lewis, Eminent
Domain, Secs 100, l0l. Isl, $50; 2 Dillon,
Municipal Corporations, Sec. 99l. Ohio. ETC.,
Railroad Company VS. Wachter. Am ST. Re-
ports SIS, ana notes: Charles VS.. Rankin, 6 Am.
Dec. CAS- and notes; Davis VS. the City of
Charlottesville. u Am. St. Rep. S62. and notes;
Nichols VS. City of Duluth, IL Am. 81 Rep.
74s, and note, and many other cases |
ssThe public is in TACT an adjoining propr ietor
whether IL owns the fee or an easement" Has
no greater right than an individual and holds
s.the street subject to the same limitations and
conditions that attach to private ownership
49, Consequently the owner mas right 10
the support OF his soil by that Of the street. q
right to the exclusive possession of his en-
closure as against encroschmenis from the
street, aud the pubic mus so use and improve
the street as not to interfere with such rights,
or else make Just compensation Tor the oam-
ages occssioned by such interference" This Ia
the doctrine laid down by MI. Lewis ana as ne