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 circumstances the common law does not give 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.

-right to damages for vacation.

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,

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 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.

108 Ga. 671, 47 L.R.A. 755, 34 S. E. 852; Hyde v. Minnesota, D. & P. R. Co. 29 S. D. 220, 40 L.R.A. (N.S.) 48, 136 N. W. 92; Re West 151st Street (Sup.) 123 N. Y. Supp. 343; Enders v. Friday, 78 Neb. 510, 111 N. W. 140, 15 Ann. Cas. 685; Lewis, Em. Dom. 199.

Eminent domain-highways-who entitled to damages for vacation.

Our conclusion is that neither the amendment to the Constitution, nor the statute, has enlarged the right to damages as defined by the common law, where there has been a lawful vacation of a street, and that there has been no taking or damaging of appellant's property within the meaning of either the Constitution or the statute.

6. The contention that to deny damages to appellants is to deprive them of their property without due process of law cannot be sustained. They have no property in the plat or streets vacated. The streets in question were dedicated to public use. The owners of lots abutting on these streets acquired rights in the streets by virtue of the dedication, which were not acquired by those who did not purchase from the proprietor of the plat; but the appellants do not come within that class.

In Meyer v. Richmond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106, it was urged that the use of a street once dedicated to the public may not be interrupted and the street diverted to a private use without compensation to those who, in reliance upon the continuance of the street, acquired private rights which were injured by its obstruction. The court said the substantial thing is not that one may be damaged by an obstruction in a street, or specially damaged beyond others, but whether such damage is a deprivation of property within the meaning of the federal Constitution; and it was held that consequential damage to property caused by the obstruction was not a deprivation of property within the meaning of the 14th Amendment. In that case the plaintiff's lot abutted upon the

street obstructed and the obstruction was in the same block, a situation which in this state would make applicable the doctrine of the cul-de

sac cases.

In Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 50 L. ed. 596, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175, it was said that, if the injury complained of is only incidental to the legitimate exercise of governmental powers for the public good, there is no taking of property, and a right to compensation for such injury does not attach under the Constitution of the United States.

These cases are decisive and we accordingly held that, when, as here, a street is vacated to promote the interest of the public, any injury suffered by a landowner, not special or different in kind from that suffered Constitutional by other members vacation of of the community, compensation. is not property within the meaning of the 14th Amendment.

law-due process

street without

Counsel have viewed the case from many standpoints and we have endeavored to follow the different lines of thought developed in their arguments. In the end we return to the three cardinal questions mentioned at the beginning of this opinion. The answers to them determine this appeal.

The judgment and order are affirmed.

Dibell, J., dissenting in part:

I concur in the view that the vacation statute applies to Hibbing; that it does not delegate legislative power to the judiciary in contravention of the Constitution; and that the finding that the vacation will result in the promotion of public interest, so far as public interest is involved in a vacation and as the term is understood and applied in vacation proceedings, is sustained by the evidence. I do not agree that the damages suffered by the owners of lots south of the vacated 40 are all general and none special, and that none of the owners can be compensated.

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 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 damages.

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. damages special. This court, perhaps influenced in part by the constitutional provision, has adopted the liberal as distinguished from the

strict rule prevailing in some states in holding damages special.

I dissent only so far as the holding is that none of the property owners were entitled to damages.

A petition for rehearing having been filed the following Per Curiam response was handed down on November 13, 1925 (163 Minn. 456, 205 N. W. 613):

All the assignments of error and the arguments in support thereof in appellants' briefs and in the petition for a rehearing have been considered. The court has specially considered appellants' contention that, in the course of the proceedings in the court below and in

I. Introductory, 330.

II. General rules, 333.

c. Cul-de-sac, 351.

be taken into consideration in determining the amount of compensation, extends beyond the class of cases covered by the annotation, and is therefore not covered. See, for example, Chicago v. Baker (1900) 39 C. C. A. 318, 98 Fed. 830 (Illinois case), to the effect that the damages sustained by a property owner through the closing of a portion of a street near, but not in front of, his premises, so as to prevent access from that direction, without immediate communication with the next cross street in that direction, cannot be estimated by any