established as a fact that premises are so situated with respect to the highway that their value is substantially diminished by the closing thereof, the right to compensation arises. In this instance it was held that damages had been properly awarded for the diminution in value of hotel property situated on the closed street, but more than 200 feet from the closed portion thereof, where it was shown that the closing effected a substantial injury to the property through diversion of traffic from the hotel.

The question is one largely of statutory construction; and the broad provisions of the Canadian statute involved in the last case and in other Canadian decisions possibly account for the fact that, in several of these cases, the courts have allowed the recovery of damages under circumstances where recovery would, it seems, have been denied in the courts of this country.

Thus, it was held in Re Tate (1905) 10 Ont. L. Rep. 651, 6 Ont. Week. Rep. 670, that, under statute providing that municipal councils should make to the owners of property entered upon "or injuriously affected" compensation for any

damage necessarily resulting from the exercise of their powers, compensation could be recovered by the owner of a lot on the west side of a north and south street directly opposite whose property a street extended to the east, for the closing of the latter street, although, by going either to the north or south, he could, by other cross streets, reach the portion of the municipality in the direction of the closed street. It was contended that, by the closing of the street, the claimant had suffered no damage different from that sustained by the public generally, and that the principle on which he had been awarded compensation was erroneous, since his property did not directly abut upon the closed street and he had access to and from his property by the street on which it fronted, which was not interfered with. But the court said that the question was whether, having regard to the situation of the property in relation to the

closed street, the stopping of access to the street could be said to be something which injuriously affected the property; and that the claimant's right to some measure of compensation seemed reasonably clear.

And it was held in Metropolitan Bd. of Works v. McCarthy (1874) L. R. 7 H. L. (Eng.) 243, that property was "injuriously affected," so that the owner was entitled to compensation under the statute, by the closing of a public dock about 20 feet from his premises, affording him access to a river, where, although he had no right or easement in the dock other than as one of the public, yet the same was so situated that he was one of the principal users thereof, and, by reason of his proximity thereto and the access thereby given him to the river, the premises were rendered more valuable to sell or to occupy with reference to the uses to which the owner might put them. Because of the situation of the claimant's property, the injury which he sustained seems to have been regarded as different in kind from that suffered by the public generally; and the test applied was whether the act done in carrying out the works in question was an act which would have given a right of action for compensation if the closing up of the dock had not been authorized by act of Parliament. It was said that the claimant had in front of his premises two highways, the one by road or street and the other, immediately beyond, a highway by water; that, the latter being taken away, it appeared impossible to doubt that the destruction of the same was otherwise than a permanent injury to the property. See in this connection, Coster v. Albany (N. Y.) under III. b, holding that damages could not be recovered for removal of a bridge affording the best means of access to the plaintiff's property.

Also under statute requiring the payment of compensation for damages necessarily resulting beyond any advantage which the claimant might derive from the contemplated improvements, and providing that no road should be closed where by such clos

ing, any person would be excluded from ingress to and egress from his property over the road, unless, in addition to compensation, some other convenient way was provided, it was held in Re Brown (1907) 14 Ont. L. Rep. 627, that a right to compensation arose in case of the closing of a portion of a highway on which the claimant's land abutted, although the closed portion was not immediately in front of the property, but was adjacent to the same, so that although there was a road in the front of the lot, the same terminated at the boundary of the claimant's property, thereby barring ingress to or egress from the land in that direction. The principal question, however, was whether advantages derived by the claimant were within the statute.

Where a portion of a street was vacated in order to avoid railroad grade crossings, and an extension made to another so as to enable travelers to pass around the closed portion, which was not in front of the plaintiff's property, although the latter abutted on another adjacent part of the street, it was held in Newton v. New York, N. H. & H. R. Co. (1899) 72 Conn. 420, 44 Atl. 813, that there was no right to compensation, the easement of access extending only to the portion in front of the landowner's premises.

That a constitutional provision that private property shall not be taken or damaged for public use without just compensation does not apply to the vacating of streets not adjacent to the property of the one claiming damages for such vacation is held in East St. Louis v. O'Flynn (1887) 119 Ill. 200, 59 Am. Rep. 795, 10 N. E. 395, the decision in this regard being based on the general ground that there is no taking or damaging of property for public use, as those terms are used in such a constitutional provision, by the vacation of streets.

It was held, also, in Newark & B. R. Co. v. Montclair (1913) 84 N. J. L. 46, 85 Atl. 1028, that real property not abutting on the part of the street

vacated is not "taken" within the meaning of statutory provisions providing for payment of damages for the taking of property on vacation of a street, the only interest of such property owners being that shared with the public generally who have occasion to use the street, and this public interest being so in the control of the public authorities that they may abandon it when authorized by the legislature so to do, without making compensation to property owners whose fand may be thereby diminished in value.

It was held in Re West 151st Street (1908) 123 N. Y. Supp. 343, that the rule which previously existed in that state, denying the right to damages for the closing of a street to an owner of property not abutting on that part of the street closed and having reasonable access from other streets, was not changed by the Statute of 1895, which permitted recovery, in the event of the closing of the street, for damages by reason of the "rights or interests therein taken, affected, or damaged." It was said that, if the limitation of the range of damage was to be extended so as to include damage to property for which no liability had previously existed, this limitation would have been expressly so extended.

Where the closing of a street about 30 feet from the plaintiff's property, and the construction of a viaduct, did not entirely prevent access from that direction, but admitted of access for foot passengers and also for vehicles, except that the latter were required to travel about two blocks further in order to reach the part of the city lying in that direction, and access remained open in the other direction, it was held in C. Hacker Co. v. Joliet (1915) 196 Ill. App. 415, that the inconvenience suffered by the plaintiff was of the same kind and character as that sustained by people generally who desired to travel in vehicles in that direction, differing only in degree, and that he had no right to compensation.

So, it was held in Dantzer v. Indianapolis Union R. Co. (1894) 141

Ind. 604, 34 L.R.A. 769, 50 Am. St. Rep. 343, 39 N. E. 223, that depreciation in the value of property by the added inconvenience of access thereto consequent on the vacation of a part of a street about 90 feet from the plaintiff's property, to which reasonable access remained, was an injury not different in kind, but only in degree, from that suffered by the community in general, and would not sustain a right of action for damages.

It has been held, also, that one who does not own property abutting on a street which a municipality proposes to close, but who is merely the owner of farm land about a mile from the city, cannot enjoin the closing of the street or recover damages because of the closing, even though it constitutes his usual route into the city, and he is compelled thereby to take another and more inconvenient route. Jameson v. Louisville & N. R. Co. (1917) 176 Ky. 654, 197 S. W. 386.

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In Smith v. Boston (1851) 7 Cush. (Mass.) 254, the court, in holding that the owner of lots on and near a street a part of which was discontinued by the municipal authorities had right to compensation from the municipality, where none of his property abutted on that part of the street which had been discontinued, and all of it was accessible by other public streets, said: "The court are of opinion that the direction given by the judge at the trial was correct, and that the inconvenience sustained by the petitioner, if any, was not such an injury done him in his property as to entitle him to damages within the true intent of the law. There is obviously a difficulty in laying down a general rule applicable to all cases. One limit, however, must be observed, -which is, that the damage for which a recompense is sought must be the direct and immediate consequence of the act complained of, and that remote and contingent damages are not recoverable. The inconvenience of the petitioner is experienced by him. in common with all the rest of the members of the community. He may feel it more, in consequence of the

proximity of his lots and buildings: still it is a damage of like kind, and not in its nature peculiar or specific. . The damage complained of in this case, though it may be greater in degree, in consequence of the proximity of the petitioner's estates, does not differ in kind from that of any other members of the community who would have had occasion more or less frequently to pass over the discontinued highway. The petitioner has free access to all his lots, by public streets. The burden of his complaint, therefore, is that, in going to some of his houses, in some directions, he may be obliged to go somewhat further than he otherwise would. So must the inhabitants of the south end of the city, or the citizens of other towns, with their teams or carriages, who would have had a right to use the discontinued way. Upon the question of public convenience, it is the province of the mayor and aldermen, upon a balance of all considerations bearing upon it, to decide. It is not to be presumed that they will discontinue a highway once laid out, unless the considerations in favor of the discontinuance decidedly preponderate. . . We do not mean to be understood as laying down a universal rule that in no case can a man have damages for the discontinuance of a highway, unless his land bounds upon it; although as applicable to city streets, intersecting each other at short distances. it is an equitable rule. A man may have a farm, store, mill, or wharf, not bounding on a street, but communicating with it by a private way, so situated that he has no access to his property but by the public way. If this is discontinued, he must lose the benefit of his estate, or open a way at his own expense, which might be a direct and tangible damage, consequent upon the discontinuance of the public way, and we are not prepared to say that he would not have a claim for damages under the stat ute."

So, in Castle v. Berkshire County (1858) 11 Gray (Mass.) 26, where damages were sought against the county for discontinuance of a high