# Brand v. Multnomah County

> Oregon Supreme Court · March 5, 1900 · 38 Or. 79

URL: https://www.frixlaw.com/law-library/cases/6898466

## Case

- **Full name:** BRAND v. MULTNOMAH COUNTY
- **Court:** Oregon Supreme Court
- **Decided:** March 5, 1900
- **Citations:** 38 Or. 79; 60 P. 390; 1900 Ore. LEXIS 142
- **Precedential status:** Published
- **Opinion:** On rehearing by Wolverton
- **Judges:** Wolverton
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6898466

## Opinion text

Decided 17 September, 1900.
On Rehearing.
Mr. Chief Justice Wolverton
delivered the opinion.
8. A careful re-examination of the vital questions attending this controversy has brought us to the same conclusion expressed in the former opinion. The pivotal issue is whether the bridge, with its approach upon Madison Street, constitutes an additional servitude, or has perverted the street to other than legitimate street purposes. If such is its effect, the plaintiff presents a substantial basis for a decree in accordance with the prayer of his complaint; otherwise not. There is but little, if any, conflict in the law, which is aptly and succinctly stated, with its proper limitations and distinctions, in Willis v. Winona City, 59 Minn. 27 ( 60 N. W. 814 , 26 L. R. A. 142). In that case the city, under authority of the state and national legislatures, constructed a bridge across the Mississippi River, the approach of which extended a considerable distance along the center *100 of one of the streets of the city, and past the plaintiff’s property, and the question arose whether it constituted an additional servitude, in determining which Mr. Justice Mitchell says: “The doctrine of the courts everywhere, both in England and in this country (unless Ohio and Kentucky are exceptions), is that, so long as there is no application of the street to purposes other than those of a highway, any establishment or change of grade made lawfully, and not negligently performed, does not impose an additional servitude upon the street, and hence is not within the constitutional inhibition against taking private property without compensation, and is not the basis for an action for damages, unless there be an express statute to that effect. That this is the rule, and that the facts of this case fall within it, is too well established by the decisions of this court to require the citation of authorities from other jurisdictions: Lee v. City of Minneapolis, 22 Minn. 13 ; Alden v. City of Minneapolis, 24 Minn. 254 ; Henderson v. City of Minneapolis, 32 Minn. 319 ( 20 N. W. 322 ); Yanish v. City of St. Paul, 50 Minn. 518 ( 52 N. W. 925 ). See, also, Northern Transportation Co. v. City of Chicago, 99 U. S. 635 ; Selden v. City of Jacksonville, 28 Fla. 558 ( 10 South. 457 , 14 L. R. A. 370, 29 Am. St. Rep. 278 ). The New York elevated railway cases cited by plaintiff are not authority in his favor, for they recognize and affirm the very doctrine that we have laid down in Story v. New York Elev. Ry. Co., 90 N. Y. 122 ( 43 Am. Rep. 146 ), but hold that the construction and maintenance on the street of an elevated railroad operated by steam, and which was not open to the public for the purpose of travel and traffic, was a perversion of the street from street uses, and imposed upon it an additional servitude which entitled abutting owners to damages. Neither does Adams v. Chicago B. & N. R. R. Co., 39 Minn. 286 ( 12 Am. St. Rep. 644 , 39 N. W. 629 , 1 L. R. A. 493), aid the plaintiff, for that case proceeds upon the proposition *101 that the construction and maintenance of an ordinary commercial railway upon a street is the imposition of an additional servitude. Plaintiff also cites numerous cases as to what constitutes a ‘taking’ of private property. The law of those cases is unquestioned. There is no doubt that the acts of the city would amount to a taking of plaintiff’s property, so as to entitle him to compensation, provided the use made of the street by the city imposed an additional servitude upon it; but that is the very question in the case. Our conclusion is that the construction and maintenance of this bridge approach did not impose an additional servitude upon the street, but was a proper street use, and hence constitutes no basis for an action in favor of plaintiff for damages.”
This case affords a complete answer to the counsel’s contention that there is a “taking” in the present instance, within the purview of the state and national constitutions, and, as the reasoning- of the learned justice is so apt for our present purposes, we have taken the liberty to quote at much length from the opinion. The doctrine of the New York elevated railway cases and of Adams v. Chicago B. & N. R. R. Co., 39 Minn. 286 (1 L. R. A. 493, 39 N. W. 629 , 12 Am. St. Rep. 644 ), is not questioned, but it is not applicable to this controversy. In those cases there was an additional servitude created — in the former, by the construction of the elevated railway; and, in the latter, by an ordinary commercial railroad upon the streets. Other New York cases present apt illustrations of the distinction which obtains between the legal effect of a structure which constitutes an additional servitude and one which is effective merely in producing a change in the street grade. They hold that the construction of an ordinary railroad upon a street is an additional burden or servitude, for which compensation may be recovered, yet that the change of a grade upon lateral streets, made necessary to effectuate a convenient crossing of the railroad, does not constitute a burden for which the abutter is entitled to *102 compensation: Rand, Em. Dom., § 399; Uline v. New York etc., R. R. Co., 101 N. Y. 98 ( 4 N. E. 536 , 53 Am. St. Rep. 123 ); Conklin v. New York L. & W. Ry. Co., 102 N. Y. 107 ( 6 N. E. 663 ); Rauenstein v. New York L. & W. Ry. Co., 136 N. Y. 528 ( 32 N. E. 1047 , 18 L. R. A. 768). To the same purpose, see, also, Robinson v. Great Northern Ry. Co., 48 Minn. 445 ( 51 N. W. 384 ); and Wead v. St. Johnsbury & L. C. R. R. Co., 64 Vt. 52 ( 24 Atl. 361 ).
All these approve the doctrine that a mere change in a street grade, lawfully accomplished, without negligence or carelessness on the part of the proper authorities, does not entitle the abutters to compensation for any inconvenience that may be entailed thereby. It was said in Conklin v. New York L. & W. R. R. Co., 102 N. Y. 107 ( 6 N. E. 663 ), Mr. Justice Finch speaking for the court: “The plaintiff’s fee in it to its center line was not subjected to a new or different use involving a new or added compensation, but it remained unchanged as the public highway originally laid out in everything but its grade. If it became such by dedication, compensation for the easement was expressly waived. If taken .by right of eminent domain, the compensation paid covered all the damages sustained, among which were necessarily embraced such as might flow from a change of grade required for the public use and convenience. That might be altered by any lawful authority, and whatever of injury or inconvenience should result to the abutting owner was either waived by the dedication, or paid for by the original compensation, SO' that a change of grade upon a highway invades no private right. The contrary doctrine once held (Fletcher v. Auburn & S. R. R. Co., 25 Wend. 462 ), has been effectually overruled (Radcliff's Ex'rs. v. Mayor of Brooklyn, 4 N. Y. 195 , 53 Am. Dec. 357 ; Bellinger v. New York C. R. R. Co., 23 N. Y. 42 ; Selden v. Delaware Canal Co., 29 N. Y. 634 ). The appellant here relies upon Story v. New York Elev. Ry. Co., 90 N. Y. 122 ( 43 Am. Rep. 146 ). That *103 case was not intended to thus unsettle the law, for it expressly excluded from its operation injuries resulting from changes of grade.” Nor do the cases of Pumpelly v. Green Bay Canal Co., 80 U. S. (13 Wall.), 166; Eaton v. Boston C. & M. R. R., 51 N. H. 504 ( 12 Am. Rep. 147 ), and others holding to the same doctrine, help the plaintiff, for in those cases there was a physical invasion of the real estate of the private owner by a permanent flooding, which was regarded as a taking within the meaning of the constitutional inhibition. These cases are characterized by Mr. Chief Justice Fuller in Gibson v. United States, 166 U. S. 269 (17 Sup. Ct. 578), as containing the “extremest qualification” upon the doctrine which is everywhere established except, perhaps, in Ohio and Kentucky.
Willis v. Winona City, 59 Minn. 27 (26 L. R. A. 142, 60 N. W. 814 ), is in point and authoritative to the purpose that the bridge approach constructed upon Madison Street does not constitute an additional servitude thereon. It is also authority for the other proposition held to in the first opinion, namely, that the legislative authority given the bridge company to construct the bridge and its approach, specifying that such approach should be put upon the established grade of Front Street, was in itself an establishment of the grade upon that part of the street occupied by the approach. Mr. Justice Mitchell says: “The bridge is just as much a public highway aso is Main Street, with which it connects; and, whether we consider the approach as a part of the former or of the latter, it is merely a part of the highway. The city having, as it was authorized to do, established a new highway across the Mississippi River, it was necessary to connect it, for the purpose of travel, with Main and the other streets of the city. This it has done, in the only way it could have been done, by what, in effect, amounts merely to raising the grade of the center of Main Street in front of plaintiff’s lot. It can make no difference in principle whether this was *104 done by filling up the street solidly, or, as in this case, by supporting the way on stone or iron columns. Neither is it important that the city raised the grade of only a part of the street, leaving the remainder at a lower grade.” So, too, it was held in Colclough v. City of Milwaukee, 92 Wis. 182 ( 66 N. W. 110 ), that the construction, under legislative authority, of an elevated approach to a viaduct which occupied the whole street, constituted but a mere change of the grade thereof for the corresponding distance, but not an additional servitude for which the abutter was entitled to compensation. Mr. Justice Pinney says: “It is impossible, we think, to maintain that the construction of this approach to the viaduct is not really a mere change of the grade of the street for the corresponding- distance, and of .which it takes the place. It is in the nature of a bridge which is an extension of a highway or street, and the street beneath is practically discontinued.”
9. We feel assured that our former opinion is sound upon the proposition; but, if we are mistaken in this, the act of 1898 (Sess. Laws 1898, p, 185, § 231), declaring the bridge approach to be the established grade of Madison Street so far as occupied thereby is curative of the irregularities complained of, although such act may have been adopted after the commencement, or even decision, of the present suit in the court below: Pennsylvania v. Wheeling Bridge Co., 59 U. S. (18 How.), 421, and The Clinton Bridge, 77 U. S. (10 Wall.), 454. For the reasons here stated, the former opinion will be adhered to.
Affirmed on Rehearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6898466. Public record. Not legal advice.