(163 Minn. 439, 204 N. W. 534.) the judicial drainage statute, State ex rel. Jonason v. Crosby, supra; and the so-called Flood Control Act, which vests jurisdiction in the district court, State ex rel. Skordahl v. Flaherty, 140 Minn. 19, 167 N. W. 122. Section 6863 is no more open to attack upon constitutional grounds than the statutes considered in the cases cited. In several states jurisdiction to vacate public highways is directly conferred upon the courts. Sometimes the jurisdiction is exclusive and sometimes concurrent with the jurisdiction of local boards, but the constitutionality of such statutes seems not to have been questioned. Re Swanson Street, 163 Pa. 323, 30 Atl. 207; Detroit Real Estate Invest. Co. v. Wayne Circuit Judge, 137 Mich. 108, 100 N. W. 271; Hughes v. Beggs, 114 Ind. 427, 16 N. E. 817; Bradbury v. Walton, 94 Ky. 163, 21 S. W. 869; Re Big Hollow Road, 111 Mo. 326, 19 S. W. 947; Latimer v. Tillamook County, 22 Or. 291, 29 Pac. 734. The primary object of § 6863 is to provide for the vacation of plats and the determination of the title to the land in the streets. In Townsend v. Underwood's Second Addition, supra, it was said that authority to do this could not be conferred on a city council. This is self-evident, for only a court can adjudge the title to the land to be in a certain person. Hayes's Petition, 139 Wis. 163, 120 N. W. 834, deals with a statute substantially the same as ours. The statute was examined and a distinction drawn between a proceeding to vacate a plat and one to vacate a highway, a distinction suggested in Balch v. St. Anthony Park West, su pra. It would be a technical application of art. 3 to hold that the Legislature must divide jurisdiction between the courts and the municipal authorities in matters such as this by limiting the power of the court to the vacation of the plat and the adjudication of the title to the streets, and that of the local authorities to the vacation of the streets. Appellants greatly rely on State. ex rel. Luley v. Simons, 32 Minn. 540, 21 N. W. 750, and Brenke v. Belle Plaine, 105 Minn. 84, 117 N. W. 157. The first case had to do with a statute conferring power upon the district court to incorporate villages, and the second dealt with a statute authorizing the court to detach agricultural lands from cities. There can be no doubt about the general principles enunciated, but these statutes are not of the same character as one providing for the vacation of a plat. Our conclusion is that the statute is constitutional and Constitutional that the district tion of powercourt had jurisdic- streets. tion to vacate the streets within the plat of the north 40. law-delega vacation of 3. The findings pertinent to the second question are as follows: The petitioners own all the land in the north 40. Underlying the surface at a considerable depth is a deposit of iron ore, estimated at 20,000,000 tons. The only practicable method of mining the ore is to remove the overburden. There are mining pits on three sides of the north 40 and the slopes on the sides of the 40 contain an additional 13,000,000 tons of ore. This ore cannot be removed unless the plat is vacated. There are no buildings on the north 40; those once there have been removed or torn down. There is but one highway leading directly to the north. It crosses the 40 and is carried over the pits on a steel viaduct. The vacation of the plat will cut off communication over this highway. All the other northerly routes are more circuitous and inconvenient than the route across the viaduct, but highway communi cation will not be otherwise materi ally interfered with by the vacation of the plat. Mining is the predominant industry in Hibbing. The prosperity of the village largely depends upon it. The mining of the ore set free will give employment for a long time to a large number of men who reside in Hibbing or near by. The public revenue derived from the taxation of mineral lands and property devoted to mining operations has been and, until the ore bodies are exhausted, will continue to be enormous. The mining companies for years have paid and are still paying the major portion of all taxes levied for municipal purposes. It is to the advantage and interest of the inhabitants of the village, of the public generally, and of the state and nation, that the ore in the 40 and the adjacent slopes be mined and removed. There is no practicable way of preserving highway communication over the 40 and the viaduct leading to the north country. If it could be preserved, there would be slight, if any, advantage to the public. It is for the best interests of Hibbing, its inhabitants, and the public at large, to vacate the plat and the streets and alleys in question. These findings are attacked as contrary to the evidence; the specific contention being that the vacation of the plat will promote the interest of the mining companies, but not the public interests. A petition for the vacation of a street calls for the exercise of the discretion of the court or body authorized to act upon it. An appellate court has no right to overturn the decision of the tribunal which has jurisdiction to act, unless the decision was arbitrary or the result of an abuse of discretion. Fowler v. Vandal, 84 Minn. 392, 87 N. W. 1021; Steenerson v. Fontaine, 106 Minn. 225, 119 N. W. 400. The viaduct and First avenue, which leads to it from the south, have been much used for public travel, but the extent of the use of a public way is not the sole test of the propriety of vacating it. The final test is whether the public interests will or will not be best served by discontinuing the way. No one is here contending that a highway can be discontinued in order to promote private interests. The vacation of a street has several consequences. It relieves the municipality of the expense of maintaining the street and frees it from liability for damages for a failure to keep the street in repair. It releases the estates of abutting landowners from the public easement in the land between the street lines. In greater or less degree it may cause damage to other landowners by diverting travel to other streets, thus diminishing the value of property used for business purposes in the neighborhood of the vacated street. It may cause inconvenience to all persons who live in the vicinity by compelling them to travel over streets less direct and not so well kept. It may incommode the general public. Whether the question is presented to a legislative or administrative body, or to a court, the ultimate consideration is one of public expediency. Private interests are behind many applications to discontinue public highways. In the present case the fact that the mining companies have a selfish interest to serve should have no weight one way or the other, for highways can only be established, altered, or discontinued for the public good. Cram v. Laconia, 71 N. H. 41, 57 L.R.A. 282, 51 Atl. 635; Elliott, Roads & Streets, § 1183. Of course, public interest and public use are not synonymous terms. This court struggled with the question of what is a public use in State ex rel. Twin City Bldg. & Invest. Co. v. Houghton, 144 Minn. 1, 8 A.L.R. 585, 174 Ń. W. 885, 176 N. W. 159. That question is not here again, for we are now concerned with an inquiry as to the public interest; that is, whether, in the exercise of the police power of the state, the court was justified in permanently depriving the public of the use of a portion of this highway. For this reason the contention that the test of the power to discontinue a public highway and of the power to condemn land for use as a public highway is the same cannot be sustained. So far as the public is concerned, the discontinuance of a highway is the giving up, not the taking of land. (163 Minn. 439, 204 N. W. 534.) The inquiry is whether it is for the interest of the public to relinquish its easement in the land. Gen. Stat. 1913, § 1281. Whether we think of the public as all the people, or as the people who live in Hibbing, the question is: Will their interests be promoted by the vacation of the plat and streets? Highways vacation-when permissible. In view of the facts found by the trial court, it would seem that there is little room for argument on this point. To keep the ore locked in the ground for all time to come, in order to make highway communication between Hibbing and the country to the north more direct and convenient, would be a shortsighted policy. It is a matter of common knowledge that mining is the one industry upon which the prosperity of Hibbing depends. But for it, the trade of merchants and the earnings of the workmen would dwindle to a small fraction of what they are when the mines are in operation. In a measurable degree the revenues and prosperity of the state are affected by the extent to which mining is carried on. We see no reason why these considerations should not have influenced the trial court in concluding that the public benefits will outweigh the public inconvenience caused by the vacation of the streets upon the north 40. The substance of all this is aptly stated in Reed v. Hibbing, 150 Minn. 130, 184 N. W. 842 and in the memorandum of Judge Cant appended to his findings, and, without further comment, we hold that the finding in question is supported by the evidence. 4. It would seem that Reed v. Hibbing, supra, disposes of appellants' claim to damages at common law, but the briefs discuss the question at great length, and, in deference to the earnest effort of appellants' counsel to demonstrate that the views expressed in the Reed Case are unsound, we have concluded to re-examine the question. The principle that a private action for damages for the obstruction of a public way cannot be maintained by one whose injury is not different in kind from that suffered by the general public, though greater in degree, is generally recognized. The principle was approved nearly 50 years ago in Shaubut v. St. Paul & S. C. R. Co. 21 Minn. 502, and has not been questioned in the subsequent decisions. In the application of the principle, distinctions have been drawn which lead to differences of opinion between counsel in the present case. Without reviewing the cases, it is safe to say that this much has been settled: The owner of property abutting on a public highway has a special interest in the highway different from that of the general public. To recover damages for the obstruction or vacation of the highway, it is not essential that access to his property has been entirely cut off, but he cannot recover if his only complaint is that he is compelled to travel farther or over a poorer road in going to and from his property. The owner of land to which a public highway extends and one whose land does not come in contact with the highway occupy different positions. If, by the discontinuance of a highway running across, along or to the land in question it is left abutting upon a cul-desac, the owner is deemed to have suffered an injury not common to the public. The right to damages is not limited to owners of property fronting or abutting on the portion. of the highway vacated; those whose access to their property has been cut off in one direction may be placed in a position where they become entitled to damages. Some of the decisions upon which the foregoing propositions are based are Brakken v. Minneapolis & St. L. R. Co. 29 Minn. 41, 11 N. W. 124; Aldrich v. Wetmore, 52 Minn. 164, 53 N. W. 1072; Rochette v. Chicago, M. & St. P. R. Co. 32 Minn. 201, 20 N. W. 140; Shero v. Carey, 35 Minn. 423, 29 N. W. 58; Gundlach v. Hamm, 62 Minn. 42, 64 N. W. 50; Wendt v. Minnetrista, 87 Minn. 403, 92 N. W. 404; International Lumber Co. v. American Suburbs Co. 119 Minn. 77, 137 N. W. 395; Vanderburgh v. Minneapolis, 98 Minn. 329, 6 L.R.A. (N.S.) 741, 108 N. W. 480; Maletta v. Oliver Iron Min. Co. 135 Minn. 175, 160 N. W. 771; Painter v. Gunderson, 123 Minn. 323, 143 N. W. 910; Thorpe v. Ada, 137 Minn. 36, 162 N. W. 886. In none of them was the situation the same as it is here. The north 40 is in the form of a peninsula projecting into the surrounding mining pits and connected with the solid ground north of the pits by the viaduct. Travel across the 40 and over the viaduct is permanently interrupted by the vacation of the plat. The inhabitants of Hibbing are more or less inconvenienced; the appellants more than those who live or do business farther south. Appellants own no land contiguous to the plat vacated or upon the vacated portion of First avenue. Between the north 40 and the portion of Hibbing in which their property is located there is an east and west street extending through the plat and open for travel. They have access to their premises on all sides. The vacation of First avenue does not leave their property abutting upon a cul-de-sac. The burden of their complaint is that in going to or coming from the country north of the mining pits one must now go farther and over poorer roads; hence trade from the north will be diverted from their doors to South Hibbing and other trade centers more easily accessible. We are of the opinion that in these circum -ight to damages for vacation. stances the common them a right to damages. This conclusion is compelled not only by our own decisions, but by the almost uniform current of authority in all the states. See Elliott, Roads & Streets, § 1181; Lewis, Em. Dom. § 203; 13 R. C. L. pp. 73, 74. Nothing more need be said in justification of the conclusion reached in the Reed Case as to the right to damages at common law. 5. Neither the Constitution nor the statute defines the word "damaged." If it means land injuriously affected, must the land be affected in a different way than land of other owners? Speaking of the constitutional amendment, in Stuhl v. Great Northern R. Co. 136 Minn. 158, L.R.A.1917D, 317, 161 N. W. 501, the court said: "This does not mean that the amendment gives a right of recovery for acts which under general rules of law do not constitute actionable wrong. The purpose of the change is not to change. the substantive law of damages or to enlarge the definition of that term. It was rather the purpose to make the law of damages uniform, so that a property owner may recover against persons or corporations having power of eminent domain, under the same circumstances that would have authorized recovery against one not armed with that power." As amended in 1896, § 13, art. 1, of the Constitution declares that private property shall not be taken, destroyed, or damaged for public use without just compensation, and the statute (§ 6863) contains these words: "The court shall hear all persons owning or occupying land that would be affected by the proposed vacation, and if, in the judgment of the court, the same would be damaged, the court may determine the amount of such damage and direct its payment by the applicant before the vacation or alteration shall take effect." In substance, appellants contend that the Constitution and the statute have broadened the common-law rule as to damages, and that it is no longer necessary to prove special injury to the landowner to entitle him to damages for the vacation of a street. The purpose of the constitutional amendment was to give a landowner the right to compensation if his land was damaged, even though there was no physical invasion or appropriation of the land. In particular, it was intended to give redress to one whose property was injured by changes in the grade of a street. Dickerman v. Duluth, 88 Minn. 288, (163 Minn. 439, 204 N. W. 534.) 92 N. W. 1119. Merely as a member of the community, a landowner has no property in the streets in such a sense as to entitle him to compensation for any injury he may sustain as the result of the vacation of any street in the town where he lives. But, as the adjoining proprietor of land abutting on the portion of the street vacated, he may have a special or peculiar property right in the street, which may not be damaged unless compensation is made. Have the appellants, as owners of land in North Hibbing, special property rights in the streets vacated as distinguished from the rights in the streets which they enjoy in common with the general public? If they If they have, they are entitled to compensation. Mr. Lewis, from whom appellants' counsel freely quote, says that the damages for which Constistitutions such as ours make provision are those which could have been recovered at common law, had the acts which caused them been done without statutory authority, and that the decisions are almost unanimously to the effect that, where a street is vacated one or more blocks away from the property of the landowner claiming damages, and he has access in all directions to the system of streets, but must make a detour to reach certain points in the direction of the vacation, and this fact and the diversion of travel and loss of a thoroughfare depreciates the value of his property, there is no such taking or damaging of property as will entitle him to compensation. 1 Lewis, Em. Dom. pp. 370, 383, 391. It may be illogical to draw the line one or a dozen blocks from the property said to be damaged. There is a strong argument to that effect in Tilly v. Mitchell & L. Co. 121 Wis. 1, 105 Am. St. Rep. 1007, 98 N. W. 969; but a line must be drawn somewhere. Statutes and decisions fixing arbitrary lines of division in matters of distance, time, or value are so common as to need no mention. The nearer one's property is to the vacated portion of a street, the greater is the probability of an impairment of its value. It is all a matter of degree. It is hard to determine where public inconvenience ends and special injury begins, but the general consensus of opinion among courts and text writers is correctly stated by Mr. Lewis. It would seem that the word "damaged" is used in the same sense in the Constitution and in the statute. A statute containing a somewhat similar provision was considered in Rochette v. Chicago, M. & St. P. R. Co. 32 Minn. 201, 20 N. W. 140. It provided that the commissioners in condemnation proceedings should determine the amount to be paid to each landowner as damages for taking or injuriously affecting his land. It was held that the statute did not change the rule that to entitle a landowner to compensation he must have sustained special damage to his property, which, under the common law, would give him a private right of action. Schuster v. Lemond, 27 Minn. 253, 6 N. W. 802, is another case in point. There the statute gave the right of appeal from an order discontinuing a town road to any person aggrieved. It was held that only such persons. as sustained special injury, disadvantage or inconvenience not common to all the inhabitants or property owners of the town, could appeal. We think the question is set at rest by our own decisions and that they are in line with the weight of authority in other jurisdictions. Cram v. Laconia, 71 N. H. 41, 57 L.R.A. 282, 51 Atl. 635; German Evangelical Lutheran St. Lucas Congregation v. Baltimore, 123 Md. 142, 52 L.R.A. (N.S.) 889, 90 Atl. 983, Ann. Cas. 1916C, 231; Pennsylvania R. Co. v. Marchant, 119 Pa. 541, 4 Am. St. Rep. 659, 13 Atl. 690; Buhl v. Fort Street Union Depot Co. 98 Mich. 596, 23 L.R.A. 392, 57 N. W. 829; East St. Louis v. O'Flynn, 119 Ill. 200, 59 Am. Rep. 795, 10 N. E. 395; Stanwood v. Malden, 157 Mass. 17, 16 L.R.A. 591, 31 N. E. 702; Austin v. Augusta Terminal R. Co. |