The injury to the lot owners, so far as it results in taking from them merely the right, common to all, of public travel, and compelling them to take a circuitous route, is in kind that of the general traveling public, though it differs in degree. In a proper case, the vacating body or tribunal may take away without compensation the common right or easement of travel. It cannot release without compensation special damages caused by the vacation.

The statute contemplates that the party moving for the vacation, much like the petitioner in condemnation, will profit, and that the landowner may suffer specially, and, if he is so damaged, it requires compensation as a condition.

The vacation is largely in the interest of the owners of the underlying ore would not have been initiated but for them-and it is none the less proper because the fact is so. Their private property rights are not to be disregarded. The development of the mines results in special profit to them, and there is a resultant incidental benefit to the general public. It is not to be thought, either from the viewpoint of the public, or that of the mine owners, that the vast body of ore is to be locked in the north 40 permanently, or beyond a time when in the progress of the mining industry it naturally would be removed, but in so far as unlocking it causes special injury by bottling up the lots to the south, the ore body should bear the burden of the damage.

It is not important to the large general public, nor very important to most of the local Hibbing public, whether they are able to get to the property south of the vacated 40, but it is important to the individual owner that he be able to get to and from his residence or place of business, and that the public have the means of getting there for social or business purposes. This principle is noted in some of the cases cited in the prevailing opinion as helping to distinguish general and special dam

ages.

A great traffic has passed for years over the viaduct and through the north 40 to the property to the south. Property has been bought and improved with that situation in view. The traffic gave value to the property and it is gone. So far as any one knows, there is not to be again direct access to and from the north. The property is less valuable for use, less productive of rents, and less salable. The platted property to the south is the width of a 40. It is in the form of a peninsula, as indicated in the prevailing opinion, directly or indirectly surrounded on three sides by deep, impassable open pits constituting a continuous excavation. It might as well be surrounded by a river or lake incapable of bridging. No one at present sees a way of bridging them or passing through them. The property has a use and value still. The use, at least of some of it, will be restricted, and there must be a readjustment with consequent loss. It is not an ordinary vacation. The plat of the north 40 stood in the way of the proper development of the mining industry. It is vacated, the streets are gone, the property to the south cut off, and the geography of North Hibbing is entirely changed.

Under our decisions, it is not an essential element of special damages that the vacation makes the abutting street a cul-de-sac, as it did in the Vanderburgh Case, and as it did in the Maletta Case which involved the vacation of the 40 east of the north 40, where it was held as a matter of law that the injury was special. The damage to the Maletta property seems to me no less special than that done to some of the lots involved here, and no less special than the damage in the Vanderburgh Case; and Fitzer v. St. Paul City R. Co. 105 Minn. 221, 18 L.R.A. (N.S.) 268, 127 Am. St. Rep. 557, 117 N. W. 434, goes far beyond the necessities of this case in holding damages special. This court, perhaps influenced in part by the constitutional provision, has adopted the liberal as distinguished from the

certain rule, but in each instance must be determined by the jury on consideration of the situation, character, and probable uses of the property affected. It was said in Mason City & Ft. D. R. Co. v. Kennedy (1911) 113 C. C. A. 412, 192 Fed. 538 (a case arising in Nebraska), that as the property owner, under the local law, might recover damages arising from the closing of a street not contiguous to, but distant from, his property, the measure of damages was the difference in the value of the property before and after the act complained of. In Corning v. O'Neill (1917) 180 App. Div. 454, 167 N. Y. Supp. 743, affirmed, without opinion, in (1919) 227 N. Y. 625, 125 N. E. 914, it was held that the owner was not entitled to compensation for the closing of the street at a point not in front of, but beyond his premises, as better and safer street facilities had been afforded the claimant, although the distance was slightly greater. See also to a similar effect, Re Joiner Street (1917) 177 App. Div. 361, 164 N. Y. Supp. 272, which is set out under III. c, infra. But that compensation may be recovered for the closing of a street at a point not in front of the claimant's premises, notwithstanding the establishment of a new cross street, if the latter does not afford substantial access to the system of streets in the direction of the closed portion, see Re Corporation Counsel (1919) 188 App. Div. 668, 177 N. Y. Supp. 318, appeal dismissed in (1920) 228 N. Y. 523, 126 N. E. 904.

Assuming that an owner of property abutting on the closed section of a street or highway has, or may have, a right to damages for the vacation thereof, the question with which the present annotation is concerned is the effect of the fact that the property is located on some other part of the closed street or on another street. If the right to damages for the vacation of a street or highway is denied on the general ground that there is no taking of property by such vacation, and that the owner has no right to the continuance of the highway except such as he holds in common with

the public, the case does not come within the scope of the annotation, even though the property does not abut on the part of the highway closed. Thus, in Brady v. Shinkle (1875) 40 Iowa, 576, it was held that the landowner was not entitled to damages for the vacation of a highway, where the land was situated upon the highway, but not upon the part vacated, which began about 30 rods from his farm, but the decision is apparently not based on the ground that the land did not abut upon the part of the highway vacated. See in this connection Ellsworth V. Chickasaw County (1875) 40 Iowa, 571, in which the same conclusion was reached, where the land was adjacent to the vacated road, the court saying that this fact did not create in the plaintiff a right to the continuance of the road different from that possessed by other persons whose lands did not touch it. See also Levee Dist. v. Falmer (1894) 101 Cal. 178, 23 L.R.A. 388, 35 Pac. 569, in which it is held that the discontinuance of a road is not a taking or damaging of the property of an abutting owner within the constitutional provision as to compensation for property taken or damaged for public use. It may be noted that a distinction has been made between country highways, as the one in the above case appears to be, and city streets, with regard to the rights of abutting owners to compensation for vacation thereof. See, for example, Bradbury v. Walton (1893) 94 Ky. 163, 21 S. W. 869. The decision, also, in Howell v. Morrisville (1905) 212 Pa. 349, 61 Atl. 932, in which compensation was denied for vacation of a street to one whose property did not abut on the vacated portion of the street, but was nearly 300 feet distant therefrom, is based on the ground that vacation of a highway or street is not an injury to abutting landowners for which the right to compensation was provided either by constitutional or statutory provisions,-in other words, the fact that the claimant's property did not abut on the vacated portion of the street is not the ground of the decision, although it is referred

to in making the point that the alleged injury was a mere inconvenience, the same in kind as, and little, if any, greater in degree than, that of the people of the vicinity in general having occasion to use the streets in the direction of the closed portion. In Coombs v. Atlantic City R. Co. (1924) 96 N. J. Eq. 709, 126 Atl. 606, the court said it was settled in that state that the legislature had power to vacate a public street without compensation to owners of land on the street either near or even abutting the part of the street vacated, and that this power was unrestrained by the state Constitution; that property owners along the vacated street become entitled to compensation for losses suffered only when the legislature so provides.

Generally as to the right to compensation for vacation of a street or highway, it is said in 13 R. C. L. p. 71: "It has been held that the vacation of a highway or street is not an injury to the abutting owners, within the provisions of the Constitution requiring compensation, and, in the absence of special legislative provision for damages, none can be recovered. But the general rule is that persons specifically injured by the vacation are entitled to recover such damages as they may sustain, even in the absence of a statute providing therefor, and statutes in a number of states now specifically provide for the payment of compensation under such circumstances."

Cases generally of obstruction or change of street grade are not included in the annotation, although individual cases of this kind which appear to be of value on the subject under annotation have sometimes been included, but these should be regarded as merely illustrative.

Cases in which the suit was for an injunction or for abatement of an alleged nuisance by way of obstruction of a street, and not an action for the recovery of damages, are not included in the annotation, except in so far as they may be of value on the question of the right to compensation; as where they turn on the question wheth

er the property owner has sustained a special injury differing in kind from that sustained by the public generally, so as to entitle him to maintain the action. In Leavenworth v. Douglass (1898) 59 Kan. 416, 53 Pac. 123, where the suit was to restrain the building of a depot, the court pointed out that this was not an action for the recovery of damages, and that it was not called upon to decide whether in any event the plaintiff could recover damages by reason of the occupation of the street by the railroad company. It was held that the owner of property situated in the vicinity of the depot, the erection of which had been authorized by municipal authorities, who at the same time vacated that portion of the street on which the depot was to be constructed, had no right to an injunction or abatement.

In a suit to restrain the closing of a highway at a point slightly more than half a mile from the plaintiff's lands, the court in Greene v. Goodwin Sand & Gravel Co. (1911) 72 Misc. 192, 129 N. Y. Supp. 709, said that the authorities which deny damages to remote abutters upon a street, on the supposed ground that they are not legally affected by the discontinuance of other parts of the street, are actions or proceedings at law. And it was held that the plaintiff might maintain the suit in equity to restrain the proposed permanent closing of the highway, on the ground that the proceedings purporting to close and discontinue the road were not in conformity with the statute and were, therefore, invalid, where it appeared that the discontinuance of the highway would work particular damage to the plaintiff, to whom it was a necessary means of daily access to certain points.

In such cases as Polack v. San Francisco Orphan Asylum (1874) 48 Cal. 490, the question is merely as to the power of a state legislature to vacate a portion of a street when persons owning property fronting on another portion of the street will incidentally be injured by such action; and the right of the property owner to damages is not considered.