Opinion
No. 24958.
July 6, 1937. Rehearing Denied September 28, 1937.
(Syllabus.)
1. Eminent Domain — Recovery Authorized Though no Physical Invasion of Property Damaged.
Section 24, art. 2, of our Constitution, providing that "Private property shall not be taken or damaged for public use without just compensation," authorizes a recovery in a common-law action for damages, although there is no physical invasion of plaintiff's property, if he suffers a special injury, different in kind and not in degree from that suffered by the community in general.
2. Same — Damages to Abutting Property From Obstruction by Railroad Closing Street and Materially Affecting Ingress and Egress to and From Property.
The owner of property abutting on a public street which has been closed by an obstruction erected by a railway company may recover damages even though he has access around the obstruction where such access is more circuitous, and more dangerous, than the street was before the obstruction was erected, and his right of ingress and egress has been materially impaired.
Appeal from District Court, Oklahoma County; John W. Wright, Special Judge.
Action by Clarence C. Hughes and others against the Chicago, Rock Island Pacific Railway Company and others. Judgment for named plaintiff, and named defendant appeals. Affirmed.
W.B. Bleakmore, W.L. Farmer, John Barry, Robert E. Lee, Cruce Franklin, W.T. Stratton, and Harlan T. Deupree, for plaintiff in error.
Suits Disney, for defendant in error.
The plaintiffs own four lots facing north on Pine street between Walker avenue and Harvey avenue in Oklahoma City. Robinson avenue is the next street east of Harvey avenue. In the fall of 1930, the defendant railway companies, pursuant to an order of the. Corporation Commission, commenced the construction of viaducts under the railway tracks at both Walker avenue and Robinson avenue, and the concrete embankments were built entirely across Pine street at both Walker and Robinson avenues, but a way out from Pine street to Walker avenue was provided between the concrete embankment and the adjacent property in the block in which the plaintiffs' property was situated, so that in going from Pine street onto Walker avenue vehicles turned sharply to the left, and after getting to the end of the embankment those going north were compelled to turn sharply to the right and into the viaduct. A similar way out was provided from Pine street onto Robinson avenue.
The plaintiffs commenced this action to recover damages for depreciation in the value of their property, on which there were two residences, and they were also used for business purposes. The jury returned a verdict for the plaintiffs, on which judgment was rendered, and from that judgment this appeal was taken.
The lots involved in this case are on the same street and in the same block as the lots involved in the case of Chicago, R. I. P. Ry. Co. v. Jennings (1936) 175 Okla. 525, 53 P.2d 691, where a judgment for recovery of damages under the same facts as involved in this case was sustained.
The road leading around the abutment and onto Walker avenue being more circuitous and more dangerous, we think plaintiffs sustained an injury to their property different in kind, not merely in degree from the general public, and were entitled to recover damages under section 24, art. 2, of our Constitution, and the following authorities: Chicago, R.I. P. Ry. Co. v. Jennings (1936), supra; Denver Union Terminal Ry. Co. v. Glodt (Colo. 1919) 186 P. 904. See, also, Highbarger v. Milford (Kan.) 80 P. 633; C., R.I. P. Ry. Co. v. Prigmore (1937) 180 Okla. 124, 68 P.2d 90; C., R.I. P. Ry. Co. v. Larwood (1935) 175 Okla. 96, 51 P.2d 508.
Finding no reversible error in the record, the judgment is affirmed.
OSBORN, C. J., and RILEY, BUSBY, and CORN, JJ., concur. BAYLESS, V. C. J., and WELCH and GIBSON, JJ., dissent.