ROSE v. STATE (1940)

Defendants appeal from a judgment for plaintiffs in an action for damages allegedly sustained as the result of the construction of an improvement in the street fronting plaintiffs' property.

This is one of a series of similar actions brought against the defendants by the owners of property fronting upon Jackson street, in the town of Hayward, Alameda county, to secure compensation for damage allegedly caused by the construction of a subway or underpass in the center of Jackson street. Although the actions were tried separately, and are before this court on separate appeals, the facts, rights and liabilities involved in each are substantially the same; therefore, the law applicable to each will be fully considered and determined herein.

Plaintiffs are and at all times pertinent to this action were the owners of approximately 3.05 acres of land fronting some 118 feet on Jackson street in the town of Hayward. The property is devoted to a fruit orchard and is improved by a five-room residence, windmill, tankhouse and barn, but has been zoned as ‘industrial property’.

Jackson street runs from East Fourteenth street in Hayward to Mt. Eden, where it connects with the highway leading to the San Mateo toll bridge. During the month of December, 1935, the defendant, State of California, acting through its Department of Public Works, and under the authroity of the Railroad Commission, awarded a contract for the building of a subway to eliminate a crossing at grade of Jackson street and the tracks of the Western Pacific Railroad Company. Plaintiffs' property lies adjacent to the right of way of said railroad company on the north side thereof, and on the east side of Jackson street. The entire parcel is opposite the approach to the subway. In front of plaintiffs' property Jackson street is 66 feet wide. The subway, 24 feet in width, is located in the center of Jackson street. It descends under the railroad tracks of said company to a depth of approximately 16 1/2 feet, then ascends again to grade beyond said railroad tracks. On each side of the subway are ‘blind’ lanes, 14.5 feet in width, which do not cross the tracks, but serve the owners of property adjacent thereto as means of ingress and egress to and from Jackson street and their respective parcels of land.

The amended complaint alleges that the construction of the subway resulted in an impairment of plaintiffs' access to Jackson street with a consequent depreciation in the market value of their property in the sum of $5,000. The case was tried by the court without a jury, and from a judgment for plaintiffs, defendants prosecute this appeal.

Defendants maintain that their demurrer to the amended complaint should have been sustained on the ground that the trial court had no jurisdiction of these defendants nor of the subject of this action, and that the amended complaint did not state a cause of action. It is their position that plaintiffs' property has not been damaged, but, that even if it had been damaged, plaintiffs have no remedy because the State cannot be sued without its express consent, and no such consent has been given.

Plaintiffs on the other hand contend that they have suffered a damage peculiar to their individual property in that their means of ingress and egress thereto has been impaired; that they have thus been deprived of their property without just compensation in violation of article I, sections 13 and 14 of the Constitution of California, and the Fifth and Fourteenth Amendments to the Constitution of the United States; and that this cause of action may be brought under said article I, section 14 of the Constitution of California.

Two major questions then are presented by this appeal: (1) Is section 14 of article I of the Constitution of California self-executing? and (2) have the plaintiffs herein sustained a compensable damage within the meaning of said constitutional provision?

As to the first question our answer must be in the affirmative.

Under our system of government all powers not granted by the Constitution of the United States to the federal government are reserved to the states, and the power of eminent domain is one of those reserved powers. It does not as a consequence, depend for its existence upon a specific grant in the Constitution of a state. Instead, it is inherent in the sovereign state and founded upon the law of necessity. This power, however, may be limited by constitutional provision, and it has been held that a constitutional provision for the payment of compensation is a limitation aimed by the Constitution at the power of eminent domain, limiting the exercise of that power by the public in favor of the individual owner of property. Commonwealth v. Plymouth Coal Co., 232 Pa. 141, 81 A. 148, affirmed 232 U.S. 531, 34 S.Ct. 359, 58 L.Ed. 713; 18 Am.Jur. 635.

It is plain from a reading of the following portion thereof that section 14 of article I is such a limitation: ‘Eminent Domain. Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * *; provided, that in an action in eminent domain brought by the state, or a county, or a municipal corporation, or metropolitan water district, municipal utility district, municipal water district, drainage, irrigation, levee, reclamation or water conservation district, or similar public corporation, the aforesaid State or municipality or county or public corporation or district aforesaid may take immediate possession and use of any right of way or lands to be used for reservoir purposes, required for a public use whether the fee thereof or an easement therefor be sought upon first commencing eminent domain proceedings according to law in a court of competent jurisdiction and thereupon giving such security in the way of money deposited as the court in which such proceedings are pending may direct, and in such amounts as the court may determine to be reasonably adequate to secure to the owner of the property sought to be taken immediate payment of just compensation for such taking and any damage incident thereto, including damages sustained by reason of an adjudication that there is no necessity for taking the property, as soon as the same can be ascertained according to law. * * *’

Since article I, section 14, therefore, is a restriction placed by the Constitution upon the state itself, and upon all its agencies who derive from it their power of eminent domain, it cannot be said that the mere failure to the legislature to enact a statute allowing suit to be brought against the state entitles the state to disregard and violate that limitation. The logical inference is that said constitutional provision is intended to be self-enforcing.

In fact this court has already held section 14 of article I to be self-executing. Weber v. County of Santa Clara, 59 Cal. 265; Trahern v. San Joaquin County, 59 Cal. 320. Shortly after this constitutional enactment was adopted there arose a question as to whether section 14 of article I, or an act of the legislature which had previously been in effect, was controlling in the matter of condemning land for road purposes. Of said section 14, article I, this court in the case of Weber v. County of Santa Clara, supra, said: ‘The constitutional provision is prohibitory in its nature and is self-executing; it is in direct conflict with the Act of March 18th, 1874, and by necessary operation repeals the same. The Constitution contemplates and provides for a proceeding in Court in all cases where private property is sought to be taken for public use, and it prohibits any other proceeding to that end.’

In the case of Trahern v. Board of Supervisors of San Joaquin County, 59 Cal. 320, it was claimed that section 14 of article I was not self-executing. The appellant contended therein that the language—‘as shall be prescribed by law’—in said section evidently contemplated some act of legislation on the subject, and until that had taken place no damages could be assessed in pursuance of the constitutional provision. The court, however, decided to the contrary, on the authority of the Weber case, cited and quoted supra. This court is not alone in holding such a constitutional provision self-executing. As to those cases in which, like the case at bar, the injury is consequential—a damaging rather than a taking, it is said in 18 American Jurisprudence at page 1028: ‘When there is no actual occupancy of the land—and the injury is not so severe as to constitute a taking in the constitutional sense, in the states which, by their Constitutions, require compensation when property is damaged, it is settled that the constitutional provision may be invoked in a proceeding other than an eminent domain proceeding. Under such a constitutional guaranty, the right to recover in an action in damages for consequential injury has been sustained in a number of cases. It is held that the constitutional provision is self-executing; that is, that even if a statute has not been enacted providing a remedy for damage from the construction of public works, the landowner is entitled to enforce his constitutional right to compensation in a common-law action.’ Board of Com'rs of Logan County v. Adler, 69 Colo. 290, 194 P. 621, 20 A.L.R. 512; Hickman v. Kansas City, 120 Mo. 110, 25 S.W. 225, 23 L.R.A. 658, 41 Am.St.Rep. 684; Chester County v. Brower, 117 Pa. 647, 12 A. 577, 2 Am.St.Rep. 713; Swift & Co. v. Newport News, 105 Va. 108, 52 S.E. 821, 3 L.R.A., N.S., 404; Johnson v. Parkersburg, 16 W.Va. 402, 37 Am.Rep. 779; Washington Water Power Co. v. Waters, C.C., 186 F. 572; Campbell v. Arkansas State Highway Commission, 183 Ark. 780, 38 S.W.2d 753; Elgin v. Eaton, 83 Ill. 535, 25 Am.Rep. 412; McGrew v. Granite Bituminous Pav. Co., 247 Mo. 549, 155 S.W. 411; State ex rel. Applegate v. Taylor, 224 Mo. 393, 123 S.W. 892; Householder v. Kansas City, 83 Mo. 488; Chick Springs Water Co. v. State Highway Dept., 159 S.C. 481, 157 S.E. 842, 847.

The above-cited cases appear to be the leading authorities holding that a constitutional provision such as article I, section 14 of our Constitution is self-executing, but there are many other cases to this effect.

Many of these authorities are collected in the case of Chick Springs Water Co. v. State Highway Dept., supra, and we quote with approval the following portion of the opinion in said case:

“It is within the power of those who adopt a constitution to make some of its provisions self-executing, with the object of putting it beyond the power of the Legislature to render such provisions nugatory by refusing to pass laws to carry them into effect; and where the matter with which a given Section of the Constitution is divisible, one clause thereof may be self-executing and another clause or clauses may not be self-executing. Constitutional provisions are self-executing when there is a manifest intention that they should go into immediate effect and no ancillary legislation is necessary to the enjoyment of a right given and the enforcement of a duty imposed.' 12 C.J. 729.

“A constitutional provision against taking private property for public use without just compensation therefor is self-executing, even though the method of ascertaining such compensation is left for Legislative determination. When the Constitution forbids damage to private property, and points out no remedy and no Statute affords one for the invasion of the right of property thus secured, the common law, which provides a remedy for every wrong, will furnish the appropriate action for the redress of such grievance.' 12 C.J. 732.

“Const. art. 2, § 21 (Ann.St.1906, p. 148), providing that private property shall not be taken for public use without just compensation is self-enforcing and requires no legislation to give it effect. Where a statute or the Constitution creates a right, but is silent as to the remedy, the party entitled to the right may resort to any common-law action which will give him adequate redress.' State [ex rel. Applegate] v. Taylor, 224 Mo. 393, 123 S.W. 892, 895.

“It was the design of the amendment to our Constitution under consideration to remove an existing mischief, viz., the damaging of private property for public use without just compensation, and a constitutional provision should never be construed as dependent for its efficacy and operation upon legislative will. 6 A. & E. Ency. L. 913, and authorities cited. So that when the provision of a Constitution, as does ours, no less than the provision in the Constitutions of the states of West Virginia and Illinois, forbids damage to private property, and points out no remedy, and no statute affords one, for the invasion of the right of property thus secured, the provision is self-executing, and the common law, which provides a remedy for every wrong, will furnish the appropriate action for the redress of such grievance.' Swift & Company v. City of Newport News, 105 Va. 108, 52 S.E. 821, 824, 3 L.R.A. (N.S.) 404.

“Where the Constitution forbids a damage to the private property of an individual, and points out no remedy, and no statute gives a remedy, for the invasion of his right of property thus secured, the common law, which gives a remedy for every wrong, will furnish the appropriate action for the redress of his grievance. We think therefore the declaration showed a good cause of action, and the demurrer thereto was properly overruled.' Johnson v. City of Parkersburg, 16 W.Va. 402, 37 Am.Rep. 779.

‘In the case of Great Northern R. Co. v. State of Washington, 102 Wash. 348, 173 P. 40, 42, L.R.A. 1918E, 987, the state of Washington was sued by the railroad company for injury to its property, resulting from the construction of a state highway. The action was based on the constitutional provision of the state of Washington prohibiting the taking or damaging of private property for public uses without just compensation. The state of Washington interposed a demurrer to the suit, similar to the one in the case at bar, contending that the state was immune from suit. The demurrer was overruled, and it was held that the action would lie.

‘In said case, portions of the opinion are as follows:

“It is contended by the state that a suit against it to recover for damages will not lie, and that the damage herein involved is not for a public use, within the meaning of the constitutional provision requiring compensation. We cannot accede to this contention; for, if the state could have condemned the right to inflict the necessary damage or invade plaintiff's property, its failure to so condemn is not an excuse to deny plaintiff's recovery. * * * When taking private property for a public use, the state acts in its sovereign capacity. * * * ‘It goes not as a trespasser, inspired by selfish or unlawful motive, but as one taking without malice or intent to do wrong, and presumptively for the public good. It cannot put on the cloak of a tortfeasor under the statute if it would, it cannot plead a willful wrong to defeat a just claim.’ * * *

“In our opinion, the theory that property rights are ever to be sacrificed to public convenience or necessity without just compensation is fraught with danger, and should find no lodgment in American jurisprudence. If the acts which caused the injury were done under and in consequence of the direction of the state, then the state is to be regarded as the superior and responsible as such although it does the work by contract and by the direction of its duly authorized officers. The plaintiff's complaint states a cause of action under article I, § 16 of our Constitution, and the state's demurrer was properly overruled.' * * *

“The general presumption of law is that all constitutional provisions are self-executing, and are to be interpreted as such, rather than as requiring further legislation, for the reason that, unless such were done, it would be in the power of the Legislature to practically nullify a fundamental of legislation. 6 R.C.L. p. 58; Black on Interpretation of Laws, p. 21.' McColl v. Marlboro School Dist., 143 S.C. 120, 124, 141 S.E. 265; Brice v. McDow et al., 116 S.C. 324, 108 S.E. 84, 87.'

Following the line of reasoning enunciated in the foregoing excerpt from the opinion of the Supreme Court of South Carolina, the Supreme Court of Missouri in the case of Hickman v. Kansas City [120 Mo. 110, 25 S.W. 226, 23 L.R.A. 658, 41 Am.St.Rep. 684], supra, said: ‘It is also well-settled law that article of the constitution gives an absolute right, and is self-enforcing, and, although the legislature may have enacted no law providing a mode for the ascertainment and payment of the compensation provided for, resort may be had, by the party entitled to the right, to any common-law action which will afford him adequate and appropriate means of redress.’

And the Supreme Court of Arkansas in the case of Campbell v. Arkansas State Highway Commission [183 Ark. 780, 38 S.W.2d 755] supra, declared: ‘It is true that the Arkansas state highway commission did not institute condemnation proceedings against the property owners, but the property owners had a right to maintain this action. It was a remedy given them under the common law for a trespass or injury to their real estate. The right existed under the provision of the Constitution; and, where the statute provides no adequate remedy, it may be enforced by an action for damages. County of Chester v. Brower, 117 Pa. 647, 12 A. 577, 2 Am.St. 713; and Swift & Co. v. Newport News, 105 Va. 108, 52 S.E. 821, 3 L.R.A. (N.S.) 404. In the case last cited it was held that a constitutional provision that private property shall not be damaged for public use without compensation is self-executing, and the common law will furnish an appropriate remedy in the absence of one expressly given by Constitution or statute.’

In support of their contention that a sovereign state cannot be sued without its express consent, defendant cites Perry v. United States, 294 U.S. 330, 55 S.Ct. 432, 79 L.Ed. 912, 95 A.L.R. 1335 in which it was determined that a holder of a federal government bond providing for payment in gold coin of standard weight and fineness could not sue the United States government after deflation of the dollar for the reason that Congress had not passed a statute authorizing such an action. This case, however, does not involve a constitutional provision such as article I, section 14, and is not in point in the view we have taken of this case—that the State of California by said self-executing provision of its constitution has indicated its consent to be sued thereunder.

As further authority for their position that the right granted by constitutional article I, section 14, may not be enforced without specific legislation providing the method of enforcing it, defendant has cited Spinney v. Griffith, 98 Cal. 149, 32 P. 974 and Bailey, etc., Iron Co. v. Goldschmidt, 33 Cal.App. 661, 166 P. 363. In these cases actions were brought under section 15 of article XX of the Constitution, providing for various mechanics' liens and stating that ‘the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.’ The legislature failed to enact such legislation and the courts held that the constitutional provision conferred no right whatever, but that the whole remedy was contingent upon statutory enactment. These cases clearly are different from the one at bar for they are concerned with a constitutional section wherein it is specifically provided that the legislature should provide a method for the enforcement of the right granted. Section 14 of article I contains no such mandate. The court in the Spinney case, supra, correctly held that the statute was not self-executing, that the plaintiff therein did not comply with the terms of the legislative enactment applicable to the enforcement of a lien and was therefore not entitled to defend his lien. This decision was followed in the Bailey case, supra, which also held that the constitutional provision was inoperative except as supplemented by legislative action and that it was not intended to be self-executing.

Defendants attempt to distinguish decisions of other states holding a constitutional provision similar to article I, section 14 to be self-executing on the ground that the Constitutions of said states do not contain a provision similar to article XX, section 6, of our Constitution. The language of said section is as follows: ‘Suits may be brought against the State in such manner and in such courts as shall be directed by law.’

It is defendants' contention that the state a sovereign body, cannot be sued without its express consent; that article XX, section 6 empowers the legislature to determine when and how suits may be brought against the state; that the legislature in Political Code Section 688, the only general statute on the subject, has seen fit to permit suits against the state only where the actions are on express contract or for negligence.

In passing it may be noted that article XX, section 6, does not on its face appear to be mandatory and direct that ‘all suits against the State must be brought in such manner * * *.’ On the contrary the wording of said section, and the fact that it is located in the portion of the Constitution devoted to a discussion of ‘Miscellaneous subjects' tends rather to give the impression that said section was intended to be permissive, that is, to decide what suits, other than those already provided for, might be brought against the state, and to prescribe the manner for so doing, and the courts having jurisdiction thereof.

Application of the rules of statutory interpretation to the two constitutional provisions under discussion does not disturb our conclusion as to the self-enforcing character of article I, section 14.

As is declared in the Code of Civil Procedure, section 1859, ‘In the construction of a statute the intention of the legislature * * * is to be pursued, if possible.’ Certainly the language of a statute should never be so construed as to nullify the will of the legislature. If section 6 of article XX is to be construed as requiring the enactment of a statute permitting suit to be brought to secure the right granted in section 14 of article I, the effect would be to permit the legislature, by its refusal or neglect to act, to nullify the intent of the framers of the Constitution. Such a result would be inconsonant with the rule that statutes might be given a reasonable interpretation, one which will carry out the intent of the legislators and render them valid and operative, rather than defeat them. In so doing, sections of the Constitution, as well as to the Codes, will be harmonized where reasonably possible, in order that all may stand.

It is well settled, also, that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.

Further discussion of the interpretation of article I, section 14, is unnecessary for it cannot but be obvious that it must be regarded as self-enforcing in order to effectuate its evident objects and purposes.

After pointing out that Political Code Section 688 permits suits against the state only on express contract or negligence, defendants cite Pacific Gas & Electric Co. v. State, 214 Cal. 369, 6 P.2d 78, to the effect that section 688 of the Political Code as it now stands grants permission to sue the state only upon express contract; and further cite United States v. Great Falls Mfg. Co., 112 U.S. 645, 5 S.Ct. 306, 28 L.Ed. 846, 848 and Crescent Wharf, etc., Co. v. City of Los Angeles, 207 Cal. 430, 278 P. 1028, to the effect that a suit such as the one brought herein by the plaintiffs is an action on implied contract, which on the authority of Crescent Wharf, etc., Co. v. City of Los Angeles, supra, may not be instituted under Political Code, section 688.

Defendants continue, maintaining that the case last cited holds that rights granted by section 14 of article I of the Constitution are not superior to or in any different category from other property rights, and that a suit to recover damages for in infringement upon said rights, as a consequence, does not stand in any different light than any other class of suit, and may not be brought against the State of California without its express consent.

While we are familiar with the decisions mentioned above, we are not entirely in accord with the view that an action in the nature of inverse condemnation, such as the one with which we are herein concerned, is strictly a suit on implied contract. We are more inclined to hold the constitutional provision itself grants a cause of action—statutory in nature. However, since it has been held that under a self-executing constitutional provision, an action will lie at common law to recover compensation for private property taken or damaged for public use, we do not find it necessary to rule on that question in order to reach a decision in this case.

We do, however, wish to point out that this court in the Crescent Wharf case, supra, merely declared that the respect in which the right to compensation under Constitutional article I, section 14, is not superior to or in a different category from other property rights is that such a right is not exempt from reasonable statutory regulations or enactments. In said case the regulations was a statute of limitations.

We are entirely in accord with that view. That a constitutional right may be subject to reasonable rules and regulations for the enforcement or protection thereof is elementary. A recent decision of this court in the case of Chesney v. Byram, Cal.Sup., 101 P.2d 1106,—which cites the Crescent Wharf case, has held that a right granted by a constitutional provision may be subject to reasonable regulation and control by the state legislature and at the same time such provision may be self-executing.

It will be noted, however, that in neither of said cases did the court in any way imply that by state legislation or a lack thereof a constitutional right might be taken away or denied altogether, for it is likewise elementary that the legislature by statutory enactment may not abrogate or deny a right granted by the Constitution. Potter v. Ames, 43 Cal. 75; Wilcox v. Engebretsen, 160 Cal. 288, 116 P. 750; Sievers v. Root, 10 Cal.App. 337, 101 P. 925. And it follows as a logical conclusion that a right constitutionally granted cannot be taken away by the failure of the legislature to act.

As stated in the case of State v. Fletcher, 168 Okl. 538, 34 P.2d 595, the constitutional provisions in question were not enacted to protect in any way the sovereign state, but were specifically enacted to protect and preserve the individual rights of the subjects of the sovereign. Certainly, in the absence of provision in the section itself, the framers of the Constitution did not intend to grant a right which the legislature by its refusal or neglect to enact proper remedial machinery therefor might take away or deny.

Defendant has attempted to distinguish suits against agencies of the state from suits against the state itself, contending that though they admittedly may be maintained against the former, they cannot be brought against the latter without its express consent because of its sovereign nature.

This same argument was advanced in the case of Chick Spring Water Co. v. State Highway Department, supra, and, we believe, ably answered in the opinion therein, as follows:

‘No valid distinction can be drawn between cities, counties, and other political subdivisions, * * * and the state highway * * *. All are agencies of the state, and all derive their immunity from the same source, the state, and upon the ground that, being agencies of the state, they are in effect the state itself. Counties, cities, and other political subdivisions are held liable where they take property, not upon the ground that they are authorized by statute to be sued, but because of the constitutional provision requiring compensation to be made for such taking. This protection is afforded to the humblest citizen by the Constitutions of the state and the United States, and neither government can itself or by any statute or through any agency take property without paying compensation. ‘Immunity from suit’ cannot avail in this instance, and, if no statute exists, liability still exists, because as to this provision the Constitutions are self-executing.

‘To hold otherwise would be to say that the Constitution itself gives a right which the Legislature may deny by failing or refusing to provide a remedy. Such a construction would indeed make the constitutional provision a hollow mockery instead of a safeguard for the rights of citizens.

‘Not court has ever applied the doctrine of immunity from suit to cases like the one at bar, nor can they, for to do so would absolutely annul the provision of article 1, § 17, of the Constitution.’

It is urged by the defendants that inasmuch as plaintiffs in this state can either enjoin or sue for damages in cases such as this (Wilcox v. Engebretsen, 160 Cal. 288, 116 P. 750; Rockridge Place Co. v. Oakland, 61 Cal.App. 791, 216 P. 64), plaintiffs are not entirely without a remedy.

It must be pointed out, however, that in many cases of consequential damage the remedy of injunction alone would be comparable to no remedy at all—for prior to the construction of the improvement which causes the injury it may not be apparent that damage will result, or if it is obvious that damage will result, it may be impossible to ascertain the extent thereof.

We proceed next to a consideration of the question whether or not plaintiffs have sustained a compensable damage within the meaning of article I, section 14 of the Constitution.

That the owner of property fronting upon a street or highway has as appurtenant thereto certain private easements in the street in front of or adjacent to the lot—distinguished from the public easements therein—which are a part and portion of his property and are the private property of the lot owner as fully as the lot itself, is not open to question.

The nature of this property right is described in Brown v. Board of Supervisors, 124 Cal. 274, at page 280, 57 P. 82, 83, as: ‘The property which an abutting owner has in the street in front of his land is the right of access and of light and air, and for an infringement of these rights he is entitled to compensation. This right is peculiar and individual to the abutting owner, differing from the right of passing to and fro upon the street, which he enjoys in common with the public, and any infringement thereof gives him a right of action. Dill.Mun. Corp. § 712. In Eachus v. [Los Angeles] Ry. Co., 103 Cal. 614, 37 P. 750 [42 Am.St.Rep. 149], the right which the abutting owner has to the use of the street fronting upon his lot is defined to be an easement therein for the purposes of ingress and egress, which attaches to the lot, and in which he has a right of property as fully as that which he has in the lot itself, and any act of the municipality by which that easement is destroyed or substantially impaired for the benefit of the public is a damage to the lot itself, within the meaning of the constitutional provision, for which he is entitled to compensation.’

That a property owner is entitled to compensation whenever his right of access is impaired in a manner peculiar to the particular property itself and different than that suffered in common with the public generally is indicated by the following language in the case of Montgomery v. Santa Ana W. Ry. Co., 104 Cal. 186, 37 P. 786, 788, 25 L.R.A. 654, 43 Am.St.Rep. 89—(which involved the construction of railroad tracks within the limits of the street): ‘We affirm that, when a public street in a city is dedicated to the general use of the public, it involves its use, subject to municipal control and limitations, for all the uses and purposes of the public as a street, including such methods for the transportation of passengers and freight as modern science and improvements may have rendered necessary, and that the application of these methods, and indeed of those yet to be discovered, must have been contemplated when the street was opened and the right of way obtained, whether by dedication, purchase, or condemnation proceedings, and hence that such a user imposes no new burden or servitude upon the owner of the abutting land. The object of the user being within the conceded rights of the public, the methods of its accomplishment are subject to legislative control, and subject, also, to an action for damages by any abutting owner, whether or not he may be vested with the fee to the center of the street, whose right of ingress and egress, or his right to light and air, shall be interfered with.’

This doctrine is affirmed in several cases in which abutting owners were compensated for impairment of access to their property. Geurkink v. City of Petaluma, 112 Cal. 306, 44 P. 570 (change of natural watercourse); Wilcox v. Engebretsen, 160 Cal. 288, 116 P. 750 (change of grade); Eachus v. City of Los Angeles, 130 Cal. 492, 62 P. 829, 80 Am.St.Rep. 147 (change of grade); and McCandless v. City of Los Angeles, 214 Cal. 67, 4 P.2d 139 (open cut and stairway in sidewalk).

In the case at bar it cannot be questioned that the plaintiffs, as abutting owners on Jackson Street, possess not only the right to the use of the street in common with other members of the public, but also a private right or easement for the purposes of ingress and egress to and from their lot, which right may not be taken away or destroyed or substantially impaired or interfered with for public purposes without just compensation therefor.

In their own words it is plaintiffs' theory, ‘that the State, having taken a sixty-six foot roadway in the entire width of which and entire length of which plaintiffs have an easement of ingress and egress as abutting property owners, and having constructed a subway twenty-four feet in width, varying in depth from nothing to seventeen and one-half feet, having constructed fourteen feet blind side lanes on each side of said subway, and in one portion thereof a side lane ten feet, four inches wide, and having constructed four foot sidewalks, plaintiffs' right of ingress and egress has been substantially impaired.’

The defendants concede that as a general proposition a property owner whose means of ingress or egress has been substantially impaired is entitled to damages. It is the position of the defendants, however, that this right of access does not extend across the street or to the length thereof, but is confined to the right to get on or off the abutting property and to and from the general system of public streets. Defendants contend that in order for a damage to be compensable it must interfere with the owner's access to the street, not merely cause him inconvenience after he reaches it.

More specifically defendants take the view that as long as plaintiffs can step from their lot into the narrow blind lane which is a part of Jackson Street and connects their property with the main traveled portion of the thoroughfare, right of ingress and egress is not impaired in spite of the fact that in order to proceed in a northerly direction, they must drive up said lane to the northerly entrance of the subway and await an opportunity to enter the traffic emerging therefrom; and to proceed in a southerly direction they must cross said traffic, then make a right angle turn underneath the tracks.

Whether under this particular set of facts the plaintiffs have suffered a compensable damage, is a question we deem already settled by the case of McCandless v. City of Los Angeles, supra. A brief résumé of the facts in that case will reveal the striking proximity with which they parallel those in the case at bar.

Plaintiff, McCandless, was the owner of a lot on Sunset boulevard in the city of Los Angeles. Said lot had a frontage of 53.1 feet and was 145 feet deep. Sunset boulevard at this point was 100 feet in width, having 60 feet thereof paved for vehicular traffic, and on each side thereof a strip of 20 feet wide from the property line to the curb, used for sidewalk and parking.

The defendant city constructed a pedestrian subway from and in front of plaintiff's property to the opposite side of Sunset boulevard. The southerly approach to the subway was an open cut in the sidewalk immediately in front of the plaintiff's property with steps leading down to the level of the subway proper. The stairway paralleled the plaintiff's front property line and was about 7 feet distant therefrom. To protect the open cut and the stairway, iron railings were constructed around three sides of the opening, the railings being above the surface of the sidewalk. The open cut and stairway were about 20 feet in length and were opposite the center portion of plaintiff's property. The plaintiff sued the city, alleging damages by reason of the impairment of ingress and egress.

This court therein held that the complaint stated a cause of action, and that questions of whether or not the improvement caused a damage special and peculiar to plaintiff's property, whether such damage constituted a substantial impairment of her right of access, and the extent of the compensation to be awarded therefor were all questions of fact to be determined by the trial court or jury.

Defendants attempt to distinguish the McCandless case, asserting that the McCandless property was on a main city thoroughfare, in a commercial zone, whereas plaintiffs' property lay on the outskirts of a small town and was used for agricultural and residential purposes. Defendants further compare the public improvements constructed, claiming that a legal distinction exists between the two cases, namely, that in the McCandless case the interference with the right of ingress and egress arose out of the fact there was difficulty in getting to and from said property into the public street, whereas in the case at bar any inconvenience arises after the public street is reached. It is their contention that plaintiffs' right herein has not been infringed as a matter of law. Defendants further claim that the inconvenience suffered by plaintiffs herein is shared with the public in general and is not therefore compensable.

These purported distinctions are not convincing. The plaintiff in the McCandless case had access to Sunset boulevard around the cut and stairway placed in front of her property in the sidewalk; just as plaintiffs herein had into the main traveled portion of Jackson street via a blind lane next to their property.

The question of damage to the right of access does not depend on the location of the obstruction strictly on the owner's property line, or upon total destruction of the owner's means of access into the street proper.

It is the opinion of this court that in every case involving an abutting owner's right in the street fronting his property, the questions are whether or not his property has suffered a damage peculiar to itself over and above or different from that suffered by the public generally; what constitutes a damage peculiar to the property itself; and what the amount of compensation therefor shall be. We hold that all these are questions of fact to be ascertained by the jury or the trial court. We are averse to the laying down of a hard and fast set of rules providing that under certain conditions the owner of property will be entitled to compensation and that under others he will not. Any attempt to do so would require entrance into the realm of speculation and conjecture entirely beyond the range of judicial pronouncement.

This view is borne out by the language in the case of McCandless v. City of Los Angeles, 214 Cal. 67, 71, 73, 4 P.2d 139. Substantially this same opinion is expressed in Smith v. S. P. R. R. Co., 146 Cal. 164, at page 167, 79 P. 868, 106 Am.St.Rep. 17. See, also, O'Connor v. S. P. Ry. Co., 122 Cal. 681, 55 P. 688; Brown v. City of Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L.R.A. 161.

As a further defense defendants have contended that even if plaintiffs herein were damaged, the damaging occurred as the result of an exercise of police power and is damnum absque injuria.

Relying very strongly upon the cases which have held that the closing of a street crossing by the railroad commission is damnum absque injuria as to nonabutting property owners, defendants maintain that plaintiffs certainly cannot complain because they must travel a narrow side lane to reach the main traveled portion of the street when they could not recover if the street were closed entirely.

Briefly, we may observe that recovery has been denied in those cases upon the ground that the injury is one suffered in common with the public, is not special or peculiar to the property—that the difference in damage is one of degree and not of kind, depending upon the property owner's proximity to the closed crossing. Compensation has also been refused on the ground that access is not in fact impaired, that convenient and reasonable means of ingress and egress is afforded, although not the quickest and closest route to traveled thoroughfares. We have noticed also that a growing number of decisions denying recovery for damages to nonabutting owners of property on closed streets are prompted by the economic factors involved. Since every property owner for a great distance therefrom is somewhat inconvenienced by the closing of a street, the question of where to stop awarding damages is not only difficult to ascertain, but the payment of said damages places a great burden upon the public whenever such closings are ordered.

The cases determining what does and what does not constitute a compensable damage are in considerable confusion.

This decision will not be benefited by a lengthy consideration of the authorities cited by defendants. Defendants contend that the case of City of San Mateo v. R. R. Commission, 9 Cal.2d 1, 68 P.2d 713, 718, decides conclusively that the closing of a grade crossing is under the police power and any injury resulting therefrom is damnum absque injuria. The court therein stated that in the absence of facts to the contrary it would assume that none of the plaintiffs' property directly abutted on the area to be closed, and that the private property in question was contiguous to either county or state highways connected by public crossings. The court then held that the nature of abutting owner's right is ‘an easement in the street fronting upon his lot, for the purposes of ingress and egress', and concluded that no such right had been taken away in the case before it.

In Arcadia Realty Co. v. City of St. Louis, 1930, 326 Mo. 273, 30 S.W.2d 995, 997, the court said: ‘But if it be assumed that plaintiffs' properties will be stripped of potential uses and their value thereby lessened, and that the streets on which such properties are located will become cul de sacs as plaintiffs claim * * * all as a result of the street vacations in question, still plaintiffs will not by reason thereof suffer injury special or peculiar to them within the meaning of the rule long established in this state. In order for a property owner to sustain an injury special or peculiar to him on account of the vacation of a street, his property or some part of it must abut on the vacated portion, or else the vacation must deprive him of reasonable access to the general system of streets.’

West Virginia has the same constitutional provision as to the taking or damaging of private property for public use as California. The effect of such provision was considered by the Supreme Court of that state in the case of Richmond v. City of Hinton, 117 W.Va. 223, 185 S.E. 411, 412. That case involved the closing of a grade crossing, leaving the plaintiff's property in a cul de sac instead of on a street opening in each direction. The court says: ‘There are many cases which hold * * * that a property owner is not entitled to damages for inconvenience shared with the general public and differing in degree only, if the street was closed at a place where his property does not abut. * * * The just compensation, guaranteed by the Constitution, must be confined within bounds. There must be a reasonable limit beyond which the guaranty is not applicable. Conceding that there is difficulty in determining just where the bounds should be laid down, it is evident that the difficulty is accentuated if remote and indirect damages are to be allowed. Where would the line be drawn? Conceivably a mercantile business would have fewer patrons, * * * and a dwelling less eligible because of the closing of a street two or three blocks away. * * * If damages could be recovered in such circumstances, crushing burdens would be imposed on the public treasury. We are of opinion that property is damaged within the meaning of both the Constitution and the common law when the corpus or an appurtenant right is affected. In a situation such as at bar clearly the corpus remains intact. And the appurtenant right of access is not affected within the meaning of the guaranty against public encroachment so long as a convenient way of ingress and egress remains. The Constitution does not undertake to guarantee to a property owner the public maintenance of the most convenient route to his door. The law will not permit him to be cut off from the public thoroughfares, but he must content himself with such route for outlet as the regularly constituted public authority may deem most compatible with the public welfare.’

See, also, New York, Chicago & St. Louis R. R. Co. v. Bucsi, 128 Ohio 134, 190 N.E. 562, 566, 93 A.L.R. 632—wherein the court concludes that it will deny compensation in all cases where the property still has reasonable access to the general system of public streets even though that is only in one direction and says:

‘We are fully aware that the rule adhered to by this court in this case may be harsh under certain circumstances, but any other rule would breed untold confusion. If one nonabutter on a street that had been closed at one end could maintain an action for damages, then every other nonabutter would have the same right; and the rule of damages would be of such a speculative nature as to open a wide avenue for imposition.

‘The time has come when Ohio must adopt one of the two rules. There is no middle ground. Either each and every nonabutter upon a vacated street must be given a right of action for damages, or such right must be denied all nonabutters. The term ‘nonabutter’ as used herein is used in the sense that the property in question does not abut upon that part of the street that is vacated.'

We are not here called upon to determine whether a legal limitation should be placed on the right of recovery in the cul de sac cases by a determination that as a matter of law a nonabutting owner suffers no peculiar and special damage, and endures his injury in common with the general public, or retains a reasonable access to general traveled streets.

Our decision to regard the holding in the McCandless case, supra, as controlling with respect to the compensable nature of plaintiffs' damage herein, makes it unnecessary for us to consider this contention. The effect of the McCandless decision was to determine that a damage resulting from a factual situation similar to that with which we are here concerned, is compensable. This result was emphasized in the decision of the District Court of Appeal in the McCandless case, McCandless v. City of Los Angeles, 10 Cal.App.2d 407, 52 P.2d 545, in which a hearing by this court was denied. Said case held that an instruction to the effect that any taking or damaging of the McCandless property was done under the police power and therefor not compensable, was properly refused. The earlier decision in the same case by this court was cited as being authoritative on this point.

In the instant case, the several property owners whose access is impaired by the construction of a subway in the street on which their property fronts, suffer a special and peculiar damage to their particular property different from that suffered in common with the public in general; and it has been decided as a question of fact that their means of ingress and egress has been substantially impaired. Furthermore, the ascertainment of those who are entitled to compensation presents us with no extensive and difficult problem.

The case of Powell v. McKelvey, 56 Idaho 291, 53 P.2d 626, is not in point for the reason that the Idaho Constitution does not grant compensation for a ‘damaging’ as well as a ‘taking’ of private property. Furthermore, the side lanes in said case where not blind and were as a matter of fact held not to interfere with the lot owner's right of access. Ralph et al. v. Hazen et al., 68 App.D.C. 55, 93 F.2d 68, is not decided under a constitutional provision such as article I, section 14 and, therefore, is likewise not applicable here.

We have examined the findings of the trial court and do not find that they contain inconsistencies or irreconcilable conflicts on any material issues. Defendants contend that the trial court erred in computing the amount of damage to plaintiffs' property on the basis of a 120-foot frontage on Jackson street when said frontage was in fact only 118 feet as indicated on maps in evidence, which maps were agreed upon by the parties to be accurate. Reference to one of said maps reveals that the said frontage is recorded thereon to be 118 feet ‘plus or minus'. In addition, defendants themselves, in their answer, stated that the frontage of plaintiff's property measured ‘not more than 120 feet’. Since there is some evidence to support said finding of the trial court, and since if such discrepancy did exist, it is so infinitesimal as to come within the rule of de minimus, we do not feel that the interference of this court is required.

Defendants also complain that the finding of the trial court as to damage,—namely, that the property was damaged to the extent of $35 per front foot, 125 feet deep, and that the remainder had been damaged in the sum of $200—was not supported by the evidence for the reason that all of the valuation testimony was based on the full depth of the property and not upon the basis of a subdivision at a depth of 125 feet.

There is little merit in this contention. That the trial judge is not bound by the opinion of the witnesses on market value is well settled. The province of such testimony is only to aid the court in arriving at a conclusion. 10 Cal.Jur. 972. Furthermore, in the instant case, the trial judge visited the premises, and the information so obtained ‘is independent evidence to be taken into consideration * * * in determining the issues of the case.’ Gibson Properties Co. v. City of Oakland, 12 Cal.2d 291, 297, 83 P.2d 942, 945 (an eminent domain case) and cases cited. In Joint Highway Dist. No. 9 v. R. R. Company, 128 Cal.App. 743, 18 P.2d 413, 421, the court did not even view the premises, but it was held therein that ‘the trial court was not obliged to blindly accept the estimate of any witness on market value, and properly made its own determination of the ultimate fact, aided by the testimony of the various witnesses weighed in the light of all of the evidence before the court.’

The facts are that plaintiffs' property is admittedly zoned as industrial property and testimony as to its value as such was received; the trial court viewed the premises and reached its own conclusion as to the value of 125-foot front strip of the property and the back portion thereof; and the total amount of the damage awarded was within the scope of the testimony of the valuation witnesses. Joint Highway Dist. No. 9 v. R. R. Company, supra, 128 Cal.App. page 762, 18 P.2d 413; City of Stockton v. Ellingwood, 96 Cal.App. 708, 718, 275 P. 228. In view of these facts we cannot say that the finding of the trial court was not supported by the evidence.

Other contentions raised by both parties do not require further discussion, for they have been examined and found to be without merit.

For the reasons and upon the authorities contained herein, the judgment of the trial court is affirmed.

CARTER, Justice.

We concur: SHENK, J.; CURTIS, J.