Opinion
Rehearing Denied March 30, 1931
Hearing Granted by Supreme Court April 30, 1931.
Appeal from Superior Court, Los Angeles County; Arthur Keetch, Judge.
Action by Elizabeth McCandless against the City of Los Angeles. From a judgment in favor of defendant, plaintiff appeals.
Affirmed.
YORK, J., dissenting.
COUNSEL
Gilbert A. McElroy, Lorrin Andrews and Porter T. Kerckhoff, all of Los Angeles, for appellant.
Erwin P. Werner, City Atty., Jerrell Babb and Sam H. Erwin, Deputies City Atty., all of Los Angeles, for respondent.
OPINION
HOUSER, J.
Plaintiff brought an action against the defendant by which she sought to recover a judgment for damages alleged to have been occasioned by the action of the defendant in causing the erection and construction of a pedestrian tunnel on a part only (both as to length and as to width) of a sidewalk on a street on which a certain lot belonging to plaintiff abutted. From a judgment in favor of the defendant, plaintiff has appealed to this court.
Although several different legal principles are urged by appellant as suggesting a sufficient reason or reasons for a reversal of the judgment, it is conceded that each of such reasons is, and that all of them are, finally dependent upon a determination of the ultimate question of whether the construction of the said pedestrian tunnel which occupied a part of the sidewalk of the street on which the lot of plaintiff abutted constituted the taking of any property belonging to plaintiff which would give rise to a legal claim for compensation therefor and thereby afford a basis for an action for damages.
At the outset, it may be well to remember that a sidewalk of a street is a part of the highway to which the sidewalk is adjacent. Martinovich v. Wooley, 128 Cal. 141, 60 P. 760; Bonnet v. San Francisco, 65 Cal. 231, 3 P. 815; Marini v. Graham, 67 Cal. 130, 7 P. 442; Ex parte Taylor, 87 Cal. 94, 25 P. 258. It is also apparent that, while ordinarily for the purpose of affording greater convenience and safety to pedestrians a sidewalk is constructed apart from that portion of the highway used for vehicular traffic, it would be within the power of the constituted authorities to depart from the usual custom, and either fail to provide for the construction of a sidewalk on a street or to abolish an existing sidewalk thereon.
From an examination of the authorities throughout the United States, it appears that, as far as may be ascertained, no decision has been made in a case wherein the facts resembled those in the instant case. But it also appears that, where the question of the right of damages by the owner of property which abutted upon a street for injuries which resulted to him by reason of a public use having been made of the street other than, or different from, that to which the street was originally intended or subjected, the decisions emanating from the several courts of last resort are not harmonious one with the other. As examples of decisions wherein the courts of one state have differed in their determination of the question from the conclusion reached thereon by tribunals of other jurisdictions, see Ryan v. Preston, 59 A.D. 97, 69 N.Y.S. 100; Minnequa Lumber Co. v. Denver, 67 Colo. 472, 186 P. 539; Pillings v. Pottawattamie County, 188 Iowa 567, 176 N.W. 314; Town of Longmont v. Parker, 14 Colo. 386, 23 P. 443, 20 Am.St.Rep. 277; Commissioner of Highways v. Ely, 54 Mich. 173, 19 N.W. 940; Morris v. Covington County, 118 Miss. 875, 80 So. 337; Newton v. New York, etc., R. Co., 72 Conn. 420, 44 A. 813. The foregoing cases include situations such as the construction and maintenance of side paths for the use of bicycles along a public highway (Ryan v. Preston, supra); the building of a viaduct in a street (Minnequa Lumber Co. v. Denver, supra); the making of large cuts or fills in a street (Pillings v. Pottawattamie County, supra); the digging of a ditch in a street (Town of Longmont v. Parker and Commissioner of Highways v. Ely, supra); the closing of a street where it crossed railroad tracks and the construction of a tunnel at a different point in order to accommodate traffic (Newton v. New York, etc., R. Co., supra); and the vacation of a country road by which the owner of land abutting thereon was deprived of access to his property (Morris v. Covington County, supra).
The case of Genazzi v. County of Marin, 88 Cal.App. 545, 263 P. 825, concerned the asserted right of an owner of certain ranch property to an injunction by which the supervisors of the county in which such property was located would have been restrained from diverting a stream, so that, instead of the water thereof following its natural course across the highway on which the property abutted, it would be conducted by or through a "wide and deep ditch" along one side of the highway and adjacent to a part of the property in question. It was held that (syllabus):
"While, generally speaking, an abutting land owner on a public highway has a special right of easement and user in the public road for access purposes, and this is a property right of easement which cannot be damaged or taken from him without due compensation, such owner is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway, although entire access cannot be cut off; if he has free and convenient access to his property, and his means of ingress and egress are not substantially interfered with by the public, he has no cause of complaint."
See, also, Lane v. San Diego Elec. Ry. Co., 208 Cal. 29, 33, 280 P. 109; Strehlow v. Mothorn, 100 Cal.App. 692, 699, 280 P. 1021.
Although in the case of Eachus v. Los Angeles, etc., Railway Co., 103 Cal. 614, 37 P. 750, 42 Am.St.Rep. 149, the constitutional provision (article 1, § 14), to the effect that, without just compensation being paid to the owner thereof, private property "shall not be taken or damaged for public use," is construed and a ruling announced in substance that an owner of a city lot which abuts on a public street is entitled to compensation for an injury to his property which results from a change of grade of such street, nevertheless, in the later case of Hayes v. Handley, 182 Cal. 273, 187 P. 952, 955, which, as far as has been pointed out, is the only case in this state where a question similar to that here under consideration was involved, it was held that the construction by a municipal corporation of a traffic tunnel in a city street was a use which might be made of such street without additional compensation being made therefor to the owner of land abutting on the street adjacent to such tunnel. The court further declared that it is well settled that the manner and extent of the public use of a street is not limited by any standards or methods of use in vogue at the time such street was dedicated; and then quoted the following excerpt from the opinion in the case of Montgomery v. Santa Ana, etc., Co., 104 Cal. 186, 191, 37 P. 786, 25 L.R.A. 654, 43 Am.St.Rep. 89: "*** We affirm that, when a public street in a city is dedicated to the general use of the public, it involves its use subject to municipal control and limitations for all the uses and purposes of the public as a street, including such methods for the transportation of passengers and freight as modern science and improvements may have rendered necessary, and that the application of these methods, and indeed of those yet to be discovered, must have been contemplated when the street was opened and the right of way obtained, whether by dedication, purchase, or condemnation proceedings, and hence that such a user imposes no new burden or servitude upon the owner of the abutting land."
In addition thereto, Sears v. Crocker, 184 Mass. 586, 69 N.E. 327, 100 Am.St.Rep. 577, which was said to be "a well-considered and carefully reasoned case," was largely drawn upon for reasons in support of the conclusion reached therein that (syllabus): "The construction of a subway and tunnel in the street *** without a formal taking of land in the streets, is not illegal on the ground that it would impose an additional servitude on lands previously taken for streets, and thus deprive of their property the owners of the fee of the streets." Among other statements contained in the case to which reference has just been had, the following may be noted: "It hardly can be contended that this is an unreasonable mode of using the streets. in reference either to travelers or abutters. *** The necessary requirements of the public for travel were all paid for when the land was taken, *** and whether the particulars of them were foreseen or not. The only limitation upon them is that they shall be of a kind which is not unreasonable. ***"
It would appear that the trend of judicial opinion in the matter under consideration is that a general dedication of a street or highway to public use ordinarily is all-inclusive in character, and, at the time such dedication becomes effective, embraces, not only any and every use then known, practiced, or even conjectured either by the general public or by private individuals for the moving, carriage, locomotion, transportation, or conveyance of either persons or property of any kind, but as well includes any other or additional reasonable use either of a similar or of a dissimilar kind, nature, or character which thereafter may be discovered for the benefit or welfare of the traveling public.
Considering the broad character of the legal principle enunciated in the authorities last cited herein, and remembering especially that in the instant case a portion only of the sidewalk in front of but a part of plaintiff’s lot is used for the construction of the pedestrian tunnel in question, it would seem apparent that plaintiff had no ground upon which to maintain her action.
The judgment is affirmed.
I concur: CONREY, P.J.
I dissent: YORK, J.