The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1905-08-12
RAILROAD USl
AN OPEN STREET B /:
JUDGE SIMPSON DECIDES vACA-
TIoN WASN'T LEGAL.
vanderburg Case Against City and
Great Western Road Decided In Fa-
vor Of Defendants Property Owner
Has No Cause Of Action as He Still
Has Right Of Access.

Judge D. =. Simpson today filed a
decision sustaining defendants de-
murrer to the complaint in the notable
case Of W. B.. Vanderburg against the
city of Minneapolis and the Chicago
Great Western r. Hallway na;af company By
ent suit for damages, while in the
memorandum he is given the somewhat
dubious satisfaction of an assurance
that he would have valid grounds for
claiming damages if the street had been
legally vacated. s
The court passes upon two important
decision. He holds, on ' a point raised
in this state for the first time, that the
vacation Of a street may damage prop
erty other than that directly AUDITING
upon it, and the owner Of such damaged
property is entitled to. compensation
therefor. He further decides that the
street half way along the block between
Thirteenth and Fourteenth avenues s.;
that altho the street is given up to the
use of the railway company, it is in
reality still a street, and the plaintiff
is not entitled to. collect the damage
that legal vacation would cause.
The vacation of a part Of First street
8, at Thirteenth avenue, cut off access
to W. H. Vanderburg's property, leav-
ing it abutting on a cul de sac. The
owner brought suit for $4,000 dam
ages, and the case has been in the
courts in one form and another for over
| year: %-FE
Judge Simpson says, in his memoran-
Damages to Auditing Property.
| The better rule seems to be that others
| than the abutting property-owner may
have special rights in the streets, differing
from those enjoyed by the general public
and may by any encroachment upon the
street suffer a special damage such as
| would entitle them to recover damages
from the person making the encroach-
ment. The right of access to property
which is of value is not the mere right
or privilege of going from the lot upon
the public highway to other points. The
two things together-the right to go from
! the lot upon the street and to go along
the street to some objective point, give
to the property it's value. While the pub
lie generally enjoys the right Of driving
upon the street, the owner of property
abutting upon the street enjoys the right
! of access to his property in connection
with the general use of the street. Prop
perty is damaged not only by the entire
destruction of thearight Of access, but it
is damaged by the partial destruction or
dimunition Of that right If a free ap-
preach to property exists from two direc-
j lions, the closing Of one approach has
clearly damaged the. property, as in the
same way, altho perhaps in a degree less
than a moiety, the closing Of both ap-
proac1les damages .tne property and we
think this view Is sustained by the later
and morecareful1y considered cases. I
Not Closed to Travel.
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In this. case II is alleged that no com
either oft he defendants. I. There is nj
, Legislative enactment placing upon thu
city Of Minneapolis the burden Of malkins
compensation to the owners of propert,
, injured specially by the vacation Of street
, and the law has provided no method Q
ascertaining the extent of any such in
, jury AS far as appears in this case, nj
funds of the city have been made avail
able or pledged to the payment of compen
!. sation to the plaintiff by any act of tn
: city. On the contrary, the city den1e
| that it is in any way liable to the plant
. iff The resolution, therefore, passed b,
: the city council. cannot have the effect O
: closing First avenue S to travel as aga1ns
the plaintiff, and to give 1t such effec
would be to permit the city to .contraven
the constitution. ,s"-.s.. a..
. This disposes of the cause Of actfo1
Z against the city,. In considering the cas-
. as against the defendant railway com
; pany, it is only necessary to add that tn
: complaint fairly construed, simply state
l that thru the act of the city council, they
t as AUDITING owners, became possessed Q
9 a portion of the street. The complain
i. does not allege that they have in an
. way interefered with or prevented tn
9 plaintiff from exercising any right whic
,, he had prior to such action of the cit
7 council. to travel over such street. =
In theabsence Of any such allegation
y y and under the law applicable to the fact
:, alleged, the defendant railway compan
g has not rendered itself liable to tn
y plaintiff for damages either by way {
compensation for property taken unde
the guaranty Of the state constitution Q
for nuisance created by it in the stree
causing special injury to the plaintiff.
POLICE TIMING AUTO:
, | 49,