Summary
Error from Lyon District Court.
On the 22d of May 1871, a petition was duly presented to the Board of Coxmty Commissioners of the Coxmty of Coffey„ signed by the requisite number of qualified petitioners, praying that a certain portion of a county road, as established by the final order of the county board on the 8th of October 1867, be vacated. This petition was duly acted upon, due notice of hearing given, viewers duly appointed, the road duly viewed and reported upon, and at a regular session of said county board, held July 5th, 1871, among other proceedings in relation thereto the record presents the following:
“And the said board being satisfied that the granting of said petition, and the vacation of the certain part of the road as prayed for in said petition, will inure to the public good, and that said vacation, as recommended by said viewers, will foe of public utility, it is ordered and directed, that said report, survey, and plat, be duly recorded; and it is further ordered, considered, and adjudged, that from this time henceforth the said particular part of said road, as described in said petition, and referred to in said report, be and the same is hereby vacated.”
After the making and entry of said order, George W. Venard, claiming to be damaged by reason of the vacating of said road made and presented to the county board a claim “for damages done to the following described tracts of land, (owned by said Venard,) by vacating of county road,” etc., (describing the part of road vacated, and specifying his particular tracts of land-.) The damages so claimed were $1,000. The county board disallowed the claim, and Venard appealed to the district court. The cause was transferred to Lyon county for trial, and was there tried at the January Term 1872. Verdict and judgment in favor-of Venard for $975. New trial refused, and the Board of Comm’rs of Coffey Co. bring the case here by petition in error for review.*
1. To entitle the defendant in error to recover compensation for the vacation of said part of said road, there must be not only a peculiar loss to him, but it must have been injuriously brought about by a violation of some legal right of his in the four chains and seventy links of- road vacated. The law gives him no compensation for loss unless it be coupled with legal injury. If, by the action of the plaintiffs in error, there has been an infringement of a legal right of the defendant in error, unattended by any positive injury differing in kind from that which is common to others, it furnishes no ground for other than nominal damages. Sedg. on Dam., 27, 121; Broom’s Leg. Max., 196, 198; Cooley’s Const. Lim., 384, 542; Smith’s Lead. Cases, 447.
The general rule that no one has a vested right to be protected against remote or consequential injuries, resulting from a proper exercise of rights by others, is peculiarly applicable to injuries arising from the exercise of public powers. The construction of a new way, or the discontinuance of an old one, may very seriously affect the value of adjacent property. The removal of a state capital, or of a county-seat, will often reduce very largely the value of all the real estate of the place from whence it was removed; but in neither case can the parties whose interests would be injuriously affected, enjoin the act, or claim compensation from the public. True, certain of the earlier Indiana cases (since overruled,) and notably certain Ohio cases, have recognized the doctrine that the right of the owner of adjoining land to the use of the highway in an appendant easement, which is as much property as the land itself, and that if it be invaded or injured, even though done by persons acting within the scope of their authority, he is entitled to compensation. 15 Ohio, 474; 18 Ohio, 229; 7 O. St., 459; 14 O. St., 523. These cases admit that a party whose interests are injured by the original establishment of a street grade, can have no claim to compensation; but they hold that when the grade is once established, and lots are improved in reference to it, the corporation has no right to change the grade afterwards, except on payment of the damages. But if the supreme court of Ohio intended to hold in the above cases that persons, whether artificial or natural, are answerable for the damages which may result to an adjoining land-owner from the grading of a street, though the act was done under ample authority and in a proper manner, it is a doctrine in direct conflict with most English and American decisions: 4 T. R., 794; 2 Barn. & Cress., 703; 4 N. Y., 195; 17 Wend., 649; 1 Denio, 595; 2 Hill, 466; 29 HI., 279; 1 Grant,. 208; 9 Watts, 382; 29 Penn. St., 391; 1 Pick., 417; 23 Ind., 381; 4 G. Greene, 47; 29 Conn., 523; 17N. IT., 477; 20 Howard, 135; 6 Wheaton, 703. We submit that by the discontinuance of said part of said county road, no legal right of the defendant in error has been infringed, and that if any discoverable damage has been done thereby, it is to him, damnumi absque injuria. Even though the obstruction of the highway at the place is to be regarded as a public nuisance, yet we submit that the defendant in error has not shown that he has sustained an injury therefrom, differing in kind from ^that sustained by the community in general, in order that he may maintain an action therefor.
1. Plaintiffs in error claim that the vacation of said highway by the board of county commissioners is, as to Yenard, a damage for which no action will lie. Yenard was entitled to claim damages under the road law: ch. 89, § 5, Gen. Stat., 899. The record shows that he made claim as therein provided. To give the said § 5 any other construction than that it applies as well to damages occasioned by the vacation of a road as to damages occasioned by the opening of a road, would be to say that it is in the power of a board of county commissioners to vacate a road, no matter how necessary it may be to a citizen, and he has • no redress. This cannot be the law. The right of appeal is given to the party who feels himself aggrieved, (Gen. Stat., ch. 89, § 7; ch. 25, § 30,) which provision the defendant duly availed himself of.
2. But Yenard’s interest in said highway does differ in kind and degree from that of other citizens or the public generally. It may have been (and it was in point of fact, as shown by the record) that the road in question was the sole means of ingress and egress to the premises of the defendant to his lands. Where such an interest exists the private citizen may maintain his action to protect his individual interests, even though the matter in dispute may affect the public generally: 18 N. Y., 155; 23 N. Y., 317; 5 Kas., 518. And particularly see Venard v. Gross, 8 Kas., 248, where this identical road is considered, and where it was determined that Venard, having a different interest from that of the public at large might maintain his action for an obstruction of this highway.
3. The equities of this case strongly commend it to the court. The defendant has sought to rid himself of this dam incubus by resorting to all the means in his power, (Venard v. Cross, 8 Kas., 248.) And after getting a decision in his favor in the above case, he is met in the court below by an order of the board of county commissioners vacating the road, which the evidence shows was and is his only means of egress and ingress to his land; and then is sought to be deprived of all pecuniary redress for his injuries. The evidence in the case shows that the defendant in error was actually damaged to the full amount of the judgment.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
