by the city authorities, hence the court could not vacate a street included in the plat vacated; but the meaning of the word "charter," as used in the act, was not considered.

The argument that every municipal corporation which has a home rule charter is organized under a special law goes too far. In a sense such a charter is a special law applicable to the municipality adopting it, but if "charter" and "special law" have the same meaning, the Legislature spoke at random, an inference. not to be lightly drawn. If every home rule charter is a special law, and every general law under which a municipal corporation is organized is the charter of the municipality, the legislative intent would have been better expressed by omitting the words "charter or special." The first word is often used to signify the entire body of existing laws which provide for the organization and government of a particular city or village, but, since the adoption of $ 36, art. 4, of the state Constitution, the word is commonly used as a synonym for "home rule charter," and, in construing the 1909 act, the Attorney General gave it as his opinion that this is what the word referred to. Opinion No. 137, given in 1920 to the city attorney of Thief River Falls.

The district court came to the conclusion that this was the correct construction of the act for reasons tersely stated by Judge Dancer. He called attention to the fact that municipalities in this state have been organized in one of three ways: (1) By the adoption of home rule charters; (2) under special laws; and (3) under general laws. He thought the Legislature intended the 1909 act to apply to municipal corporations organized in either the first or second way, and intended to leave the original statute in effect as to those organized in the third way, because any other construction would make the words "special law" superfluous and meaningless. Referring to § 29, chap. 145, he said it did not permit the village authorities to vacate a

street unless every owner of abutting property signed the petition, hence, if one property owner arbitrarily refused to sign, the hands of the authorities were tied and there could be no vacation, however great the need might be, a result which could hardly have been intended by the Legislature. We think the district court interpreted the statute correctly, and hold that the court. had jurisdiction.

2. The next contention is that § 6863 is invalid because it delegates legislative power to the courts in contravention of article 3 of the state Constitution. If this be true, a belated discovery has been made. The statute has been in existence as long as the state. Many plats have been vacated under it. Valuable

buildings have been erected on land once occupied by streets or alleys. It would be an unexpected blow to the fancied security of titles, if, after all these years, this court should hold that the statute is unconstitutional and all proceedings under it void. So far as we know, no question as to its constitutionality has been raised in previous cases, and we might brush aside the contention by saying that to sustain it would disturb too many titles, but it is made with such earnestness that we will inquire into its merits.

The courts have frequently considered the constitutional provision for the division of the powers of the government into three distinct departments. Gradually the necessity of avoiding a narrow construction has been perceived, for it has proved to be impractical to view the provision from the standpoint of a doctrinaire. This and much more is well put in State ex rel. Jonason v. Crosby, 92 Minn. 176, 99 N. W. 636, and in State ex rel. Patterson v. Bates, 96 Minn. 110, 113 Am. St. Rep. 612, 104 N. W. 709. This court has upheld the statute authorizing the district court to establish judicial highways, in Re Fillmore & Houston Counties, 158 Minn. 302, 197 N. W. 741; Alexander v. MeInnis, 129 Minn. 165, 151 N. W. 899;

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

law-delega

vacation of streets.

is constitutional and Constitutional that the district tion of powercourt had jurisdiction to vacate the streets within the plat of the north

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 communication will not be otherwise materially 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 N. 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.

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?

Highwaysvacation-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