A quarter of a century ago the Legislature enacted Laws 1909, c. 42, creating a highway commission and authorizing the construction of such highways as in their judgment "will best subserve the interest of the general public, looking to the construction and maintenance of a complete system of highways in the state." 1929 Comp. St. § 64-331. Since that time, there has been invested in our highways in the aggregate a sum equal to about 10 per cent. of the assessed valuation of all the property in the state. A very considerable part of this has been contributed in gasoline taxes by tourists from other states. Large sums of public money have been spent in attempts to attract such tourists. The history of our legislation shows a consistent policy, both as to the carrying out of the declaration above quoted and as to the cordial welcome extended tourists. Gallegos v. Conroy, 38 N.M. 154, 29 P.2d 334.
The unauthorized and unlawful acts of the appellee were in utter disregard of the comfort and convenience of our guests, the tourists, who are perhaps the only travelers affected by the changing of the highway signs. The resident knows his way about and was no more affected by the changing of the highway signs than he would have been by a misspelling in the name of the street. But the tourist follows these signs as the hound follows the scent of the fox. This is common knowledge. This traffic was diverted by changing the signs as effectively as it would have been by putting a gate at the street intersection, with a keeper who turned all nonresident cars off the highway. That the appellants, whose business depends largely upon the tourist trade, would be entitled to injunctive relief against such a physical obstruction is unquestioned. See Peace v. McAdoo,110 App. Div. 13, 96 N.Y.S. 1039; Id., 46 Misc. 295, 92 N.Y.S. 368,369.
"The right to conduct one's business without the wrongful * * * interference of others is a valuable property right which will be protected, if necessary, by injunctive process." Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657.
There are scores of other towns and villages along the route of our state highways, with tradesmen and keepers of tourist camps who would like to have the traffic diverted so as to pass their places of business. If the town or village board is held to have the power to cause such diversion of traffic from the highway, the matter of the routing of tourist traffic will be thrown into the realm of local politics, the tourist incommoded and the public policy as declared by the Legislature flaunted. I am not sure that the majority mean to imply such a power in local authorities, but I am convinced that such is the practical effect of their holding. *Page 252
The remedies suggested in the majority opinion for the correction of the evil illustrated by the situation presented by the case at bar are criminal prosecution initiated by the Attorney General, and suit instituted by the highway commission for the encroachment upon its jurisdiction. A moment's reflection will suffice to indicate the inadequacy of the suggested remedies.
I cannot agree with the majority that the rules of equitable jurisdiction are so inflexible as to prevent the application of the more effective remedy of injunction at the suit of a private person directly and pecuniarily injured by the unlawful acts complained of. I am fully aware that there is no direct precedent in the books for the allowance to an individual situated as the appellants in the case at bar are, of injunctive relief against acts similar to those here complained of. Transcontinental highways are, however, a comparatively recent development, and they present new problems which are not comparable in many respects to those presented by the older cases on the law of roads and streets and of the rights of owners of property abutting thereon. There are recent cases, cited in the majority opinion, very properly holding an owner of abutting property to have no such vested right in the mere designation of the highway upon which his property abuts as to give him a right to enjoin the state's authorized agency, within the limits of its lawful powers, from changing such designation. But I find myself unable to perceive wherein it logically follows from the fact that appellants may have no right, as against the highway commission, acting within the limits of its lawful powers and discretion, in the designation of Alameda boulevard as highway No. 80, that they therefore have no such right as against unlawful interlopers.
It is well settled law that, although equity will not enjoin the action of a municipal corporation while proceeding within the limits of its defined powers, it has the power to restrain it from acting in excess of its authority and from committing acts which are ultra vires. High on Injunctions, par. 1241; see, also, 5 Pomeroy, Equity Jurisprudence, §§ 341, 354. Moreover, as was pointed out in Fitzhugh v. City of Jackson, 132 Miss. 585,97 So. 190, 191, 33 A.L.R. 279:
"While there are some authorities to the contrary, the great weight of authority and the better reasoned cases hold that, where a municipal ordinance is void and its provisions are about to be enforced, or are being enforced, any person who is injuriously affected thereby either in his person or the use of his property may go into a court of equity to have the enforcement of the ordinance stayed by injunction."
The allegations of irreparable injury suffered by appellants because of the unlawful acts of appellee are uncontroverted. The injury suffered by them may be similar to that suffered by all owners of property abutting upon that portion of Alameda boulevard from which traffic is unlawfully diverted, but it is obviously sufficiently different from that suffered by the general traveling public and the citizenry of the state to constitute it a "special" injury. See Jeremiah Smith, Private *Page 253 Action for Obstruction to Public Right of Passage, 15 Col. Law Rev. 1, at p. 9 et seq. Whether that special injury has been the result of such technical "vacation" of the highway or such physical "obstruction" as amounted to a destruction of the private right of ingress and egress, rather than the result of some other unlawful act, seems to me to be beside the point. For, as was suggested in Piscataqua Nav. Co. v. N.Y., N.H. H.R. Co. (D.C.) 89 F. 362, at page 364:
"Ownership of abutting real estate would obviously be an important element in the question whether special damage had in fact been sustained, but it is at least very doubtful if it is anything more."
Assuming a violation of some technical easement or right attaching to abutting ownership to be a necessary condition to the right to injunctive relief, I am of the opinion that those abstract rights embrace, at least as against wrongdoers, the right to anything that actually adds to the value of the abutting property. See 4 McQuillin, Municipal Corporations, § 1426 (2d Ed.); Park Hotel v. Ketchum, 184 Wis. 182, 199 N.W. 219, 33 A.L.R. 351; Motoramp Garage Co. v. Tacoma, 136 Wn. 589,241 P. 16, 42 A.L.R. 886. For, to quote from the opinion of Vann, J., in the case of Donahue v. Keystone Gas Co., 181 N.Y. 313,73 N.E. 1108, 1109, 70 L.R.A. 761, 106 Am. St. Rep. 549:
"As a general rule, whatever renders a street more valuable to the people at large renders it more valuable to the abutting owner, for he has all their rights of user, besides other rights which are peculiar to himself. * * * Among his rights are those of light, air, and access, each long resisted, but now well established as safe from the onslaught of wrongdoers, even including those who erect an elevated railroad in a street with the sanction of law. * * * In settling the law to this extent, general expressions have sometimes been used by the court, indicating as its opinion that these easements of light, air, and access are the only rights which an abutting owner has in a public street of which he owns no part. Courts settle the law by passing upon actual questions, not by advancing abstract theories, and the words of exclusion should be limited to the facts of the case in hand when they were used, as was doubtless the intention. * * * No adequate reason is given for the attempt to limit the easement to light, air, and access. What distinction, in principle, is there between these benefits, which are incidental to a street, and any other incidental advantage which adds to the value of abutting land? * * * Is it better to limit the recovery to cases founded upon a mere technicality, or to extend it to all where substantial injury is inflicted upon the abutting owner by the act of a wrongdoer in a public street?"
It is suggested in the majority opinion that the highway commission may have acquiesced in the change in the designation of highway No. 80. If the complaint leaves that fact uncertain, then the case decides no more, perhaps, than a question of pleading. However, I apprehend that my brethren would hold that appellee's demurrer should be sustained even though the complaint, instead of alleging that the acts of the defendant were unlawful *Page 254 and unauthorized, alleged that the acts complained of were done "without the consent of the Highway Commission."
Being of the opinion that the instant case presents a question of vital importance to the welfare of the state, that the promotion of the public policy as declared by the Legislature demands, while sound legal and equitable principles permit, the allowance of the remedy here sought, I am constrained to voice my dissent.
ZINN, J., joins in this dissent.