Plaintiff introduced in evidence in support of its allegation of ownership of said lots a deed from Timothy McGrath, Amos B. Fitts, and Fred L. Bailey, as trustees for the townsite of Perry, Okla., to Thomas S. Foster, of date the 2d day of April, 1895, conveying to the said Thos. S. Foster lots 7 and 8, in block 46, in the city of Perry, and being the lots involved in this action, and further introduced in evidence a deed of date the 25th day of July, 1896, from Thos. S. Foster, conveying said lots to Benj. B. Foster. The deposition *Page 585 of Benj. B. Foster was then read in evidence, by which it was proved that about the time of the opening of the townsite of Perry said Thos. S. Foster and Benj. B. Foster, as a partnership, were engaged in the lumber business in the city of Perry; that said partnership occupied said lots as a lumber yard during the existence of the partnership; that later there was organized the Foster Lumber Company, a corporation, to whom was sold all the property and assets including the real estate of the partnership theretofore composed of Thos. S. Foster and Benj. B. Foster; that from the time of the opening of the townsite of Perry said lots had been occupied either by the partnership or by the plaintiff in this action; that while the deed to said lots was taken in the name of Thos. S. Foster, who afterwards conveyed the same to Benj. B. Foster, the purchase price of same was paid out of the funds of the partnership, and that said lots never, in fact, belonged to either of the Fosters, but was at all times the property of the partnership, and that, when the assets of said partnership were sold to the Foster Lumber Company, plaintiff in error, said lots were sold to and became the property of said Foster Lumber Company, but that no deed of conveyance was ever executed by Benj. B. Foster to the plaintiff; that the Foster Lumber Company paid for all the improvements on the lots, which amounted to something over $1,000, and that said company had paid the taxes thereon. To the introduction of this testimony defendant objected. The court at the time sustained the objection as to part of same, and, later upon motion of defendant, struck out all that part of the deposition that tended to prove that plaintiff was the owner of said lots, and that, while the legal title to the same was in Benj. B. Foster at the time the alleged damages were sustained and at the time of the trial, he had no interest whatever in said lots; that he had never occupied or been in possession of the same; and that said lots had been paid for by plaintiff, and had been occupied by it as a lumber yard for a number of years.
To the action of the court rejecting said evidence, plaintiff in error makes his first assignment of error. The question presented *Page 586 by this assignment of error resolves itself into the proposition whether an action for damages to real property may be maintained by the holder of the equitable title. If it cannot, then said evidence was incompetent. The evidence offered by plaintiff and excluded by the court tended to prove that Benj. B. Foster held at the time of the trial and at the time of the alleged injuries involved in this action the legal title to said lots as the trustee in resulting trust for the benefit of the plaintiff. It is contended by defendant in error that this action, being for the recovery of permanent injuries or damages to the freehold, cannot be maintained by any other person than the one holding the legal title to the property injured. Sutherland on Damages, § 1012, says:
"Damages in this action [referring to an action for trespass] may be such as are appropriate to the tenure by which the plaintiff holds, and such as result from the injury suffered. Possession alone will entitle him to recover damages for any injury solely affecting it. If he seeks to recover for the future, he must show that his title gives him an interest in the damages claimed, and he can recover none except such as affect his own right, unless he holds in such relation to the other parties interested that his recovery will bar their claim."
In the case of Hueston v. Mississippi Rum River Boom Co.,76 Minn. 251, 79 N.W. 92, the plaintiff sought to recover damages resulting to a certain mill and lands adjacent thereto by reason of the defendant's having built on an island in the Mississippi river a short distance below plaintiff's land a boom for the purpose of catching logs, thereby causing the river to overflow plaintiff's land, and to break into his mill, and to greatly injure his land and mill. The evidence developed that the plaintiff occupied the land at the time the injury was suffered as the vendee under an executory contract of sale. Defendant denied plaintiff's right of recovery on the ground that plaintiff did not possess the legal title to the property injured, and contended that the right of recovery for same, if any, was in his vendor. The court *Page 587 held that plaintiff could recover both for the injuries to the land and to the mill, and, commenting upon same, said:
"The general rule is that damages in an action for trespass upon real property may be such as are appropriate to the tenure by which the plaintiff holds. Possession alone will entitle him to recover damages for any injury solely affecting it. If he seeks to recover for the future, he must show that his title gives him an interest in the damages claimed, and he can recover none except such as affect his own right, unless he holds in such relation to other parties interested that his recovery will bar their claim. In this case the injury is wholly to plaintiff. He will have to pay to his vendor the full contract price, notwithstanding that the premises may have been depreciated in value by the trespass. * * * Whether he could in equity impound the damages recovered in this action if the injury to the premises was so great as to leave them inadequate security for the unpaid installments of purchase money it is unnecessary now to inquire."
It was held in McKenzie v. Railroad Company, 27 W. Va. 306, that the plaintiff who held the equitable title to certain real estate could maintain an action for damages thereto with or without her husband, in whom was the legal title, joining in the action. The rule announced in that case was adopted by the same court in the case of Clay et ux. v. City of St. Albans,43 W. Va. 539, 27 S.E. 368, 64 Am. St. Rep. 883, in which case the court holds that, where a conveyance of land has been made to a trustee for the benefit of the wife of another person by which she is permitted to have the possession and use of said land, although she is vested with only an equitable title, she and her husband or she alone may maintain an action for trespass to both possession and the inheritance
In Railroad Co. v. Charles C. Ingalls, 15 Neb. 123, 16 N.W. 762, the plaintiff in the court below sought to recover damages from the defendant for building its road, for use as a railway, upon a public road a portion of which was on plaintiff's land, thereby imposing additional burdens upon the land of plaintiff. It developed in the progress of the trial that the legal title to the property at the time of the alleged injury was in another person *Page 588 than the plaintiff; that plaintiff occupied the same under a contract for purchase, and was at said time in default of payment on his contract; and that his contract, under which he held and was in possession of said land, was subject to forfeiture. The vendor, in whom the legal title existed, however, had not taken advantage of the default. The defendant in the court below insisted that no recovery could be had because defendant in error had not the legal title at the time the injury occurred, and did not have the legal title at the time of the trial. The court held in that case that defendant in error was entitled to recover; that, at most, there was a defect of parties; and that, no objection having been raised by the pleadings to such defect of parties, the same was waived. The same rule was adopted by the Supreme Court of Nebraska inOmaha R. V. Ry. Co. v. Brown, 29 Neb. 513, 46 N.W. 46, in which case the court said:
"It would be very strange, indeed, if the purchaser of real estate who in equity is treated as the owner should be powerless to protect his rights in case his real estate, held under a valid contract, was injured; but such is not the law."
And the same court in Gartner v. Chicago, Rock Island Pacific Ry. Co., 71 Neb. 444, 98 N.W. 1052, held that one who is in possession of real estate under a contract with the owner for the purchase thereof has sufficient title to maintain an action for damages to the land.
That a person holding the equitable estate in land may maintain an action for injury to the freehold has been held in the following cases: Miller v. Zufall, 113 Pa. 317, 6 A. 350;Cleveland v. Grand Trunk Ry. Co., 42 Vt. 449; Rood v. New York Erie R. R. Co., 18 Barb. (N.Y.) 80; Russell v. Meyer, 7 N.D. 355, 75 N.W. 262, 47 L. R. A. 637; Chouteau v. Boughton, 100 Mo. 406, 13 S.W. 877.
The facts offered to be proved by that part of the deposition of Benj. B. Foster excluded by the court would have established that Benj. B. Foster had the naked legal title to said lots as a trustee in resulting trust in favor of the plaintiff in this action. *Page 589 Plaintiff was in possession, and had been ever since it was organized as a corporation, and had paid the purchase price of said lots, paid for the improvements thereon, and paid the taxes. Benj. B. Foster had never been in possession. Whatever injury occurred to said property resulting in the depreciation in the value thereof was the loss of the plaintiff. Whatever increase in the value of the same might occur would be the gain of the plaintiff. The plaintiff is the real party in interest, and in equity would be regarded as the owner of the lots, and a judgment in its favor in this case could be pleaded by defendant in an action against it by the said Benj. B. Foster upon proof of the facts offered to be proved by the plaintiff as a bar to a recovery by Benj. B. Foster. While it would have been better practice to have made the person holding the legal title a party to the suit, not having done so does not defeat the right of recovery of the plaintiff in this action, and the action of the court in rejecting said evidence was error.
The evidence introduced by plaintiff established that its lots fronted on A street, in the city of Perry, and that the same had been occupied and used as a lumber yard by plaintiff for several years; that the defendant had built upon A street in front of said lots its main line of railway and four switch tracks; that the nearest track of said railway was 10 feet from the door of the building on plaintiff's lots. The evidence further establishes that said lots are located on a corner; that on the south side of same is Seventh street, but that said street is not passable on account of their being a creek across same, over which there is no bridge; that the space between plaintiff's property and the nearest railroad track was not sufficient for teams to go in and out. There is no evidence in the record disclosing what right defendant had to build its railway tracks upon A street, or whether any permission had been granted it by the city of Perry to build the same upon said street; but it appears from the record that the case was tried in the court below upon the theory that authority had been obtained from the city of Perry by the defendant to construct its *Page 590 railroad upon said street, and such is the theory of the case as presented by the briefs of both parties filed in this court, and we shall therefore consider the case upon the theory upon which it was tried in the court below and as presented in the briefs of the parties.
It is contended by plaintiff that defendant, by constructing its tracks of railway, the nearest of which is within 10 feet of plaintiff's property, has greatly obstructed and injured its means of ingress and egress to and from its said lots, and has rendered the same unfit for business purposes, and for the purposes for which plaintiff was using them, and that, on account of such obstruction to plaintiff's means of ingress and egress to and from its lots, the same have been greatly diminished and depreciated in value, and that such acts of defendant constitute a "taking" of plaintiff's property. Plaintiff has by virtue of its ownership of said lots, an interest in street A on which said lots abut, and a right therein common with the public to pass over the same as a public highway. In addition thereto, it has a special right in said street not common to the public, to wit, the right of ingress and egress over the same to and from its lots. The decisions of the courts made under statute or constitutional provision to the effect that the complaining party can recover only where there is a "taking of private property for public use" are nearly uniform on the question that, where the injury complained of by the abutting property owner is one that is common to the general public, such injury is damnum absqueinjuria. The decisions of the courts, however, are by no means uniform upon what constitutes a "taking" of property in cases similar to the one at bar, but we believe the weight of the better authorities, if not the greater in number, is that such a "taking" may result without conversion of the property or any part thereof, as under statutes and constitution provisions which provide that private property shall not be taken for public use without compensation. Some of the courts have held that, where no conversion of the property is made, there must be a physical injury to the same, or a physical invasion *Page 591 thereof before a right of recovery exists. Chicago, Burlington Quincy Ry. Co. v. Patrick McGinnis, 79 Ill. 269.
The Supreme Court of the United States in Pumpelly v. GreenBay Co., 13 Wall. 166, 20 L.Ed. 557, held that it is not necessary that property should be taken in the narrow sense of the word to bring the case within the protection of a statute or a constitutional provision that private property cannot be taken for public use without compensation. The court held in that case that there may be such a serious interruption to the common and necessary use of property as will be equivalent to a "taking." In that case the interruption to the common and necessary use of the property complained of was that the defendant had built a dam across a river which formed the outlet of a lake by which dam the waters of the lake were raised so high as to overflow the land of plaintiff, and to tear up his trees and grass by the roots and wash them with his hay thereon away, and to choke up the ditches on the land, and to saturate some of his land with water, and to dirty and injure other parts thereof by leaving thereon deposits of sand. The facts in that case do not establish a "taking" of the property in the narrow sense of the word. The injury sustained for which a recovery was sought in that action was a physical injury to the land. But we do not understand the court in holding that a recovery could be had therefor to limit the injury for which a recovery may be had to a physical injury where there is a "taking" of the property in the narrow sense of the word. On the other hand, the reasoning of the court in that case is that the test by which it may be determined whether there has been a "taking" is not the manner in which the injury was done, but whether one's common and necessary use of his property has been seriously interrupted.
Plaintiff in the case at bar, by virtue of its ownership of said lots, had the right of access over A street to the same. Such right is one peculiar to itself, in which the general public has no interest, and exists in the nature of an incorporeal hereditament attached to said lots, and is a valuable property right, one that, *Page 592 under some circumstances, may constitute the greater element of value of the abutting property, and is one that cannot be taken away or materially impaired without compensation. Elliott on Railroads, par. 1085. In Reining et al. v. New York Lackawanna Ry. Co., 128 N.Y. 157, 28 N.E. 640, 14 L. R. A. 133, a case in which the plaintiff had built a railroad upon a street several feet high, with perpendicular walls, leaving a space of only about eight or nine feet for carriageway between said walls and the plaintiff's property, the New York Court of Appeals held that the owner's right of ingress and egress to and from such abutting property had been substantially closed against them for ordinary street purposes, and that they were entitled to recover. The right of the abutting property owner to access over the street adjacent to his property as an appurtenance to his property and to have such access protected from material obstruction has been recognized by many of the courts, and it has been held by such courts that an obstruction that materially injures or deprives the abutting property owner of ingress and egress to and from his property over the street is a "taking" of his property, for which recovery may be had.Newport Cincinnati Bridge Co. v. Foote, 72 Ky. 265; Parrot v.Cincinnati, Hamilton Dayton Ry. Co., 10 Ohio St. 625 (in this latter case the obstruction was 20 feet from plaintiff's property); Protzman v. Indianapolis Cincinnati Ry. Co.,9 Ind. 467, 68 Am. Dec. 650; C. B. U. P. Ry. Co. v. Twine,23 Kan. 585, 33 Am. Rep. 203; Central Branch Union Pacific Ry. Co.v. Andrews, 26 Kan. 702; Chicago, Kansas Western Ry. Co. v.Union Inv. Co., 51 Kan. 600, 33 P. 378; Ft. Scott, Wichita Western Ry. Co. v. Hugh Fox, 42 Kan. 490, 22 P. 583; StreetRy. Co. v. Cumminsville, 14 Ohio St. 524; Weatherford v.Commonwealth, 73 Ky. 196; Adams v. Chicago, B. N. Ry. Co.,39 Minn. 286, 39 N.W. 629, 1 L. R. A. 493, 12 Am. St. Rep. 644;Lamm v. Chicago, St. Paul, Minneapolis Omaha Ry. Co.,45 Minn. 73, 47 N.W. 455. 10 L. R. A. 268; Abendroth v. ManhattanRy. Co., 122 N.Y. 1, 25 N.E. 496, 11 L. R. A. 634, 19 Am. St. Rep. 461. *Page 593
The Supreme Court of the Territory of Oklahoma in the case ofScrutchfield v. Choctaw, Oklahoma Western Ry. Co.,18 Okla. 308, 88 P. 1048, 9 L. R. A. (N. S.) 496, recognizes, we think, the correct rule of law governing in cases similar to the case at bar. In the syllabus of that opinion the court says:
"The location and operation of a railroad upon a public highway may occasion incidental inconvenience and injury to an abutting landowner, but until it cuts off or materially interrupts his means of access to his property, or imposes some additional burden on his soil, his injury is the same in kind as that suffered by the community in general, and he cannot recover in an action therefor."
Mr. Justice Gillette, who delivered the opinion of the court, further said in the opinion:
"Every person has the same interest and right in a public street or thoroughfare that any other person has, except that property owners have a special right of ingress and egress to their property from the street, which right may not be taken from them without just compensation, because this is an injury peculiar to the particular property owners so affected."
If the evidence in this ease fairly tended to show that the construction of defendant's railroad tracks in the street in front of plaintiff's property was such as to cut off or materially interrupt plaintiff's means of access to its property, such acts of the defendant amounted to a "taking" of plaintiff's property, for which defendant would be liable. The evidence establishes that the nearest track of the railway lies within 10 feet of plaintiff's property line, and, while there is no evidence as to the width of the sidewalk next to the property of plaintiff nearest the railway track, there is evidence that the space between said track and the property of plaintiff is too narrow for teams to go in and out. Since there was some evidence that plaintiff's means of ingress and egress to and from its property over A street had been materially interrupted, it was for the jury to find whether such right of plaintiff had been materially impaired.
It is suggested by defendant in error that the lumber company *Page 594 has a means of access to its property over Seventh street adjoining its property on the south. The decisions of the courts upon the right of the abutting property owner to recover where his access is obstructed on one street, but where he has a means of access from another street, are not uniform. Some courts have held both ways upon this proposition. In the case of Kansas, Nebraska Dakota Ry. Co. v. John Cuykendall,42 Kan. 234, 21 P. 1051, 16 Am. St. Rep. 479, the Supreme Court of Kansas held that where the abutting property owner's ingress and egress was obstructed on one street, but he had a means of access from another street, there was no right of recovery. In this opinion all the justices concurred. In the case of Ft.Scott, Wichita Western Ry. Co. v. Hugh Fox, 42 Kan. 490, 22 P. 583, the same court held, all the justices concurring, that an abutting property owner is entitled to recover his damages for the permanent appropriation of the street in front of his property, although it is accessible from another street. We can see no reason that will justify the taking of one's special property right in one street because he may have a special property right in another street. If the plaintiff's property in this case is situated upon a corner of the block, and therefore adjacent to two streets, he has a right of ingress and egress to and from said property over both streets; and he who obstructs this access from one street and deprives the owner of the property of such property right cannot relieve himself of liability by pleading that the owner of the property may reach his property from another direction. The accessibility of one's property may in some instances constitute a great part of its value, and to permit a material impairment of his access would result in the destruction of a great part of the value of his property, and his property is therefore as effectually taken as if a physical invasion was made thereon and a physical injury done thereto.
There is some evidence tending reasonably to establish the material averments alleged in plaintiff's cause of action, and, if plaintiff had been permitted to prove its ownership of the property, *Page 595 there was sufficient evidence to go to the jury, and the cause will be reversed and remanded.
Williams, C. J., and Dunn, and Kane, JJ., concur; Turner, J., concurs in the result.
ON REHEARING. Opinion Filed March 9, 1909. Former Opinion Adhered to.