abutting property owner has right of access that “is as much property as the soil within the boundaries of his lot”
How later courts described this case
- abutting property owner has right of access that “is as much property as the soil within the boundaries of his lot”
- irrigation ditch along road blocked access from abutting property to the road and constituted a taking because ditch belonged to a private corporation
- “An abutting owner * * * ‘is not necessarily entitled as against the public to access to his land at all points and it is held that it is sufficient if he has free and convenient access to his land and improvements thereon even though not at all points where it abuts upon the highway.’”
Written by the judges who cited it.
The opinion
Petition for Rehearing
Before Brand, * Chief Justice, and Rossman, Lusk, Latourette ** and Warner, Justices.
LUSK, J.
The petition for rehearing presents nothing that we have not heretofore considered and discussed, except a contention that, to quote from the brief, “The Court’s opinion gives a road 80 feet wide without any proof of such a road being necessary or required.” This assertion is based on what, in our opinion, is an unwarranted assumption that the southerly boundary of the road is the northerly boundary of the Union Pacific right of way, and that assumption in turn derives from the description in the ineffectual proceedings to establish a road. For reasons which it is unnecessary to repeat we rejected the plaintiff’s contention that the width of the road could be determined by reference to those proceedings. That being so, we are unable to see how they can have evidentiary value for any purpose. Assuming, however, that resort may be had to the proceedings for the purpose sug *203 gested by counsel, we will consider counsel’s contention that the description in the petition fixes the southerly boundary of the road. The petition describes a proposed road as “running along the north side of the right of way of the Oregon Railway and Navigation Company.” This, it is said, means that the road was to be contiguous with the North boundary of the right of way. But this is not necessarily so, and in this instance the construction suggested would be unreasonable.
The word “along” is defined in Funk & Wagnail’s Dictionary as “At points extending through or over the length (of anything); by the side; near”. The meaning of the word must be determined from the context, and it does not necessarily imply contact. Watts v. City of Winfield, 101 Kan 470, 168 P 319 . See, also, Williams v. Routt County, 37 Colo 55, 84 P 1109 ; Pratt v. Atlantic and St. Lawrence Railroad Co., 42 Me 579, 585; People v. Astle, 337 Ill 253, 256, 169 NE 185 .
For a portion of its length opposite the plaintiffs’ property the railroad right of way is 60 feet in width. It then widens out to 100 feet, and the north line becomes 20 feet closer to plaintiffs’ land than is the case with the remainder of the right of way to the west. According to the testimony of the witness McLain, an engineer who prepared two of the maps in evidence, this additional 20 feet was “bought after, in later years”. He did not state when it was bought, and there is nothing to indicate whether it was before or after the abortive proceedings were commenced. But, whatever may be the fact about that, it is unreasonable to suppose that the petitioners intended the road to adjoin the right of way as it is now because the line of the road would have then proceeded in a southeast *204 erly direction along the railroad right of way some 300 or 400 feet, then turn at left angles to the northeast for a distance of 20 feet, and then, turning again at right angles, continue in a southeasterly direction. It would he equally unreasonable to say that, if the railroad right of way at the time of the attempted establishment of the road was 60 feet in width throughout' its entire length, a county road was established which adjoins the railroad’s right of way because, if that be the case, it would follow that the railroad company is now occupying 20 feet of the county road. We conclude, therefore, that the words “along the north side of the right of way” in this instance mean near the right of way.
Moreover, the boundary of the road, had one been established pursuant to the ineffectual proceedings, would not necessarily have been the exact line referred to in the petition, for the viewers, had there been any, might have made reasonable deviations so long as they stayed within the course specified in the petition. Ames v. Union County, 17 Or 600, 605 , 22 P 118 . But, since there were no viewers and the proceedings were without legal effect for any purpose, the entire discussion would seem to be purely academic.
Our holding is that the road is 60 feet in width, its northerly boundary being contiguous with the southerly boundary of plaintiff’s land.
Counsel call our attention to error in the opinion in referring to “block 10, Town of Orodell” (see 254 P2d 700, at p. 707 ). We intended to write “Block 18” in accordance with the description in the county court’s permit issued to the defendant.
We are not persuaded that we should change the views of this case heretofore expressed, and the petition is therefore denied.