(Brewer, J.) points out that it is not always easy to draw the dividing line between those cases in which the injury is direct and special and those in which it is indirect and general; that no one would suppose that a citizen of another town could challenge the action in vacating the streets, whether right or wrong; that it was equally plain that one in a remote part of the municipality in question had no such interest as justified his interference; but that as a closer approach is made to the vacated streets the question becomes more doubtful; that where a party owns a lot which abuts on that portion of the street vacated, so that access to the lot is shut off, it is clear that the lot owner is directly injured and may properly challenge the action, as he, by the loss of access to his lot, suffers an injury which is not common to the public. As access to the lots in question was not interfered with, the court reached the conclusion that the injury in question was only such an indirect result as might be occasioned by the improvement of other streets, resulting in the diversion of travel, and not such an injury as gave the lot owner any cause of action. See this case under III. d, infra.

The Canadian decisions appear to be more liberal than the American cases in allowing recovery of damages. for the closing or vacation of a street which results in injury to property not abutting on the closed portion, partly, at least it would seem, because of the broad provisions of the statutes involved. See III. a, infra.

III. Particular applications.

a. Damages recoverable, in general. Where the parts of the street closed were several hundred feet distant from the plaintiff's property, so that her means of access thereto were merely impaired, and not destroyed, it was held in Mason City & Ft. D. R. Co. v. Kennedy (1911) 113 C. C. A. 412, 192 Fed. 538, that the plaintiff might recover for special damages, in excess of that of the community at large, under the rule in Nebraska, applying the constitutional provision of that state

that the property of no person should be taken or damaged for public use without just compensation.

An important case on the present subject, in which it was unsuccessfully contended that a property owner cannot recover for the vacation of a public street unless the portion of the street vacated is in front of his property, is Denver Union Terminal R. Co. v. Glodt (1920) 67 Colo. 115, 186 Pac. 904, where the plaintiff's property, which was near the easterly end of a block, fronted on a street extending on its western terminus to a cross street which was closed in the direction of the business portion of the city, so that access to the plaintiff's property from that direction was materially impaired. The approach over the cross street on the east was inconvenient because of an overhead viaduct, and dangerous because of numerous railroad tracks. Under these conditions, even though the plaintiff's property was not entirely cut off from access to the general system of streets, it was held that he had a right to compensation for the closing of the street, since his means of access which remained were not reasonably adequate. The Constitution provided that private property should not be "taken or damaged" for public or private use without just compensation.

The right of the property owner ordinarily to access over the streets which bound the block on which his property is located, and the right to claim special damages for the closing of one of these streets, even though his property does not abut on the closed section, is sustained in Highbarger v. Milford (1905) 71 Kan. 331, 80 Pac. 633, where an owner of property in the same block as the property of the plaintiff claimed the right to the land in a street by reason of an act of the legislature undertaking to vacate the streets in that tract, and the plaintiff, who owned property in the same block and adjacent to that of the defendant, sought an injunction to restrain the obstruction of the streets. The court said that, when one purchases a parcel of ground bounded by a laid-out and dedicated street in a

given platted parcel of land, he does not thereby necessarily become vested for all time with the right to travel over and along all streets and alieys of such platted parcel of ground, or even all of the streets that it would be convenient for him to use; but that he does obtain the right to the use of such streets as are reasonably necessary for the enjoyment of the land so purchased by him; and that these streets are ordinarily such as bound the block in which his land is situated, or such as furnish access to his property from either direction. And it was held that, where an attempt is made to vacate and obstruct a portion of the street upon which a parcel of land is situated, but not abutting, so as to prevent access all around the block or portion of block in which such parcel lies, the court will, as a matter of law and without proof of the fact, assume that the owner of such parcel sustains damage by such vacation and obstruction, of a different kind than that sustained by the general public; and that he may maintain a suit for injunction to prevent such vacation and obstruction. This case seems to go farther than the cases generally hold regarding the owner's right to claim. special injuries from the vacating of a part of the street where his property abuts on that street, but not on the vacated part.

It was held, also, in Concord's Petition (1871) 50 N. H. 530, that under a statute providing that on petitions for discontinuance of highways referred to the county commissioners, if they reported for the discontinuance, they should assess the damages "occasioned to any person thereby," the recovery of damages for discontinuance of a highway is not necessarily precluded by the mere fact that the land of the person claiming damages does not abut on the highway. In this case the commissioners denied the claim of a landowner to damages, on the ground that his land "did not come to the road," supposing that they had no lawful authority to award damages in such case. This was held erroneous. But the court says that it could not have been the intention of the legis

lature to give damages on a discontinuance to any individual for inconveniences experienced by him in common with all the rest of the community; and if the inconveniences suffered by the landowner in question differed only in degree, and not in kind, from those sustained by the public generally, no damages could be recovered. And the error in law was held to require recommitment to consider whether any peculiar and special damages had been sustained by the nonabutting owner.

The doctrine is stated in Madden v. Pennsylvania R. Co. (1900) 21 Ohio C. C. 73, 11 Ohio C. D. 571, that where the closing of a street, either by vacation or by obstruction by railroads or in any other way, is near enough to property materially to affect its value, then the property owner has a right to compensation before the street is so obstructed or closed, and he can prevent such closing or obstruction by injunction. The suit was one for injunction by claimants whose property did not abut upon the particular part of the street closed. The doctrine which is stated obviously must be applied with qualifications according to the weight of authority; although the court in this instance, properly, it appears, overruled the contention that the property owner had rights only in that part of the street which would be included between the lot lines extended across the street, since the closing might not be directly in front of his lot and yet his right of ingress and egress be entirely cut off so that his right in the immediate street in front of the premises would be of no value. See III. g, infra.

Attention is called also to O'Brien v. Central Iron & Steel Co. (1902) 158 Ind. 218, 57 L.R.A. 508, 92 Am. St. Rep. 305, 63 N. E. 302, in which it was held that the permanent obstruction of a street within 200 feet of the property of an abutting owner, cutting him off from his usual and only direct access to the business portion of the town, thereby depreciating the value of his property, inflicts special injury on him for which he may recover damages. It has been held in Pennsylvania

that the constitutional provision that municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property "taken, injured, or destroyed" by the construction or enlargement of their works, highways, or improvements, is not limited in its application to property fronting or abutting on a particular work, highway, or improvement by the construction or enlargement of which property is injured or destroyed, but it extends so as to include property which, though not abutting, is sufficiently near to the improvement to make the injury proximate, immediate, and substantial. See Mellor v. Philadelphia (1894) 160 Pa. 614, 28 Atl. 991. The principle involved, however, is not distinctive to cases involving vacation of streets or highways, but extends to public improvements genererally, and, as in the above case, to changes in street grades. In that case, damages were held recoverable by the owners of property fronting on a street extending along a railway, which, by the depression of the adjacent cross streets on either side, in order to abolish railroad crossings, was rendered inaccessible to vehicles, although the part of the street in front of the property remained unchanged.

Of possible interest, also, are such cases as Lewis v. Homestead (1899) 194 Pa. 199, 45 Atl. 123, where the change of street grade for which recovery was sought was not immediately in front of the plaintiff's property; but it was held that damages could be recovered under a statute providing that in all cases where the proper authorities of a borough change the grade of any street, thereby causing damage to the owner or owners of property "abutting thereon," proceedings should be instituted for the recovery of the damages sustained. The court stated that the statute did not provide that the property must abut on the changed grade of the street, but on a street which was altered in any way, at any point, so as to cause damage to property.

In McQuade v. Rex (1902) 7 Can.

Exch. 318, it was held that a right to damages arose, in connection with the expropriation of land for a public canal, for the depreciation that would be occasioned to the petitioner's property by the closing of the street on which the property fronted, although the closing occurred at a point distant 250 feet from the property. To the same effect is MacArthur v. Rex (1903) 8 Can. Exch. 245, where the properties in question were in the neighborhood of 200 feet from the place where the road was closed. It was said, also, in this case that the properties, instead of being situated as formerly on a main thoroughfare, were now at the extreme end of a street which was closed up, forming a cul-de-sac. (See III. c, infra.) The court indicates that mere distance from the obstruction does not afford a satisfactory test as to the right to recover compensation in such a case. It may be observed that the compensation allowed was not for inconvenience to the property owner, but for injury to the property itself,-in other words, depreciation in the value of the premises. The latter decision, however, was reversed in (1904) 34 Can. S. C. 570, on the ground that another road had been substituted in lieu of the one vacated, and that damages could not be recovered for inconvenience and loss of trade.

And under a statute providing that municipalities should make to the owners of real estate "injuriously affected" due compensation for any damage resulting necessarily from the exercise of their powers, it was held in Taylor v. Belle River (1910) 15 Ont. Week. Rep. 733, 1 Ont. Week. N. 609, that the test in awarding damages was not whether the claimant's property abutted on the closed portion of the street; that, while the property for injury to which damages were claimed might not front or abut on the highway closed, yet nevertheless, if its proximity to the highway enhanced its value and the closing of the same depreciated its value, the property had been injuriously affected within the meaning of the statute; and that when once it is

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.

b. Damages not recoverable, in general.

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 land 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