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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 387 In Banc.
This is a suit for an injunction to restrain the defendant from committing acts which the plaintiffs allege constitute a public nuisance; two of the plaintiffs we shall refer to as the Lowells, the rest of the plaintiffs as the Loves. The Lowells, as tenants by the entireties, own lot four (4), block five (5); the Loves own lot nine (9), block six (6), each of the original town site of Pendleton. The various fractional interests of the Loves is undivided. Both properties are used for residence purposes. The ownership of both the Loves and the Lowells runs to the center of Johnson Street, upon which the lots face each other from opposite sides of the street. The property occupied by the defendant adjoins the Loves, and runs about 125 feet along Johnson Street, *Page 388 and about 100 feet on Court Street, which intersects Johnson Street at right angles. The defendant, a corporation, is engaged in the general automobile business; it sells, exchanges, repairs and stores automobiles.
The complaint alleges that since June of 1924, the defendant has used Johnson Street as a place for the repair of automobiles, the inspection of motors, the storing of automobiles, both day and night, and for the purpose of testing automobile engines; it alleges that the defendant particularly stores in Johnson Street old, used cars, and that the use made by the defendant of Johnson Street has caused others to believe that the residents along Johnson Street have no objection to the street, in front of their homes, being thus employed, and that therefore they also park their cars there for long periods of time. It is averred that as a result, Johnson Street has taken upon itself a shabby, neglected appearance. The complaint further states that the defendant's acts have caused pools of oil to be left in the street, from which oil is tracked into the homes of the plaintiffs; that gases are often created in the testing and running of motors in such quantities that they become offensive, and that in the repair of automobiles in the street, loud noises are caused.
Plaintiffs allege that Johnson Street is a residential street; that the property owners have expended time and money in adorning their properties with shade trees, and making their properties attractive. It is alleged that the defendant's acts interfere with plaintiffs' free access to their properties; disturb the quiet of the plaintiffs; detract from the attractiveness of their homes and from the home atmosphere; that the defendant's acts interfere with the plaintiffs' *Page 389 view; that the market value of their properties has been diminished 25 per cent, while the desirability of their properties for home purposes has been lessened 50 per cent.
These allegations of the complaint were denied by the answer, which by way of further defense alleged that Johnson Street is devoted almost entirely to business; that the ordinances of the City of Pendleton permit unlimited parking along Johnson Street, and that for more than thirty years the presence of a fire station, church and small mercantile establishments along Johnson Street have caused much parking of vehicles along the street; that at the present time there are several automobile establishments along Johnson Street in the immediate vicinity of plaintiffs' property, and that whatever parking occurs there is due to the natural conditions produced by the general use of automobiles and not by any of the defendant's acts. Based upon the foregoing circumstances the defendant alleges laches on the part of the plaintiffs.
Upon the trial the lower court found that since June, 1924, the defendant had used the block of Johnson Street upon which plaintiffs' homes face as supplemental to the floor area of its establishment, and that it has inspected, repaired and stored automobiles there; it found that the storing of automobiles in Johnson Street occurred "frequently all day, and upon occasions, day and night for several days"; that it had "encumbered this street with old, decrepit and partly dismantled motor vehicles, * * offensive to the well appearing of any street"; that its testing of the mechanical parts of motor vehicles in the street has rendered the street "noisy and uninviting," and that these conditions have caused the street to become *Page 390 congested so as to render traffic difficult in it. The court found that plaintiffs have suffered special damages and have sustained injuries in addition to and different in kind from that experienced by the public at large by reason of the defendant's acts in the following particulars: denial to plaintiffs of access to their homes; a lessening in the market value of their homes, and a diminishing in desirability of their properties for home purposes; disturbances through noises caused in the street by defendant's acts; limiting the view from their windows and porches and substituting for the view previously had rows of parked automobiles. It also found that in the absence of the defendant's acts, the market value of the Lowell property was $7,500, and of the Love property $5,000. MODIFIED. An appeal in an equity suit in this state is tried in the appellate court de novo: Morse v. Whitcomb, 54 Or. 412 (102 P. 788, 103 P. 775, 135 Am. St. Rep. 832). We have therefore read carefully all the testimony and have considered fully all of the exhibits. For us to set forth in these reports our comparison and consideration of the evidence would accomplish no permanent good. We shall therefore confine ourselves to the statement that we believe that a preponderance of the evidence supports the foregoing findings of the trial judge; he was able and bore a well-deserved *Page 391 reputation for industry and judicial capacity; his residence in Pendleton gave him a familiarity with this matter, which justifies us in additional confidence in his findings.
Numerous objections were made to the introduction of evidence. In most instances where objection was made, the testimony was taken over the objection. Fourteen assignments of error are based upon such introduction of evidence. In many instances when the trial judge received the evidence, he stated that he believed it was inadmissible, but that the proponent could take it for the benefit of the record. We find that enough admissible testimony was received to support the findings referred to above; therefore we shall not consider these individual assignments of error grounded upon the reception of evidence.
Based upon the rule that an individual cannot sue to enjoin a public nuisance unless he has sustained an injury special and peculiar to himself, the defendant contends that it necessarily follows that the plaintiffs cannot join as parties plaintiff. Defendant demurred to the complaint "on the ground that there is a misjoinder of parties plaintiff; * * on the ground that said complaint does not state facts sufficient to constitute a cause of suit." When the first witness was called, the defendant interposed an objection on the ground "that there is a misjoinder of parties plaintiff, and for the further reason that the complaint does not state facts sufficient to constitute a cause of suit." Section 68, Or.L., provides a party defendant may demur to the complaint when it appears upon the face of the complaint that there is a defect of parties. However, we have held, *Page 392
"* * that, as a ground of demurrer, means too few, and not too many. A demurrer alleging this particular objection can be interposed, therefore, only in cases of a nonjoinder of necessary plaintiffs or defendants, and never in case of a misjoinder."Tieman v. Sachs, 52 Or. 560 (98 P. 163).
Our cases are collected in Williamson v. Hurlburt, 99 Or. 336 (195 P. 562). This case is discussed in an illuminating manner in 1 Or. Law Review, 38. No error was committed in overruling the demurrer based upon misjoinder of parties plaintiff. The complaint stated a cause of suit; therefore no error was committed in overruling the demurrer based on this ground. Section 68, Or.L., also provides that the defendant may demur when it appears upon the face of the complaint "that several causes of action have been improperly united." Section 393, Or.L., provides: "All persons having an interest in the subject of the suit and in obtaining the relief demanded, may be joined as plaintiffs * *." Had there been two suits, one by the Loves, the other by the Lowells, the testimony in each would have been similar, with the exception of the effect of the acts of the defendant upon the individual parties plaintiff. Under these circumstances we believe that the observations of the Massachusetts court in Cadigan v. Brown, 120 Mass. 493, as referred to with approval in the late case of Stodder v. RosenTalking Machine Co., 241 Mass. 245 (135 N.E. 251, 22 A.L.R. 1197), are peculiarly apt.
"* * The plaintiffs * * have a common interest in the subject of the bill. They are affected in the same way by the acts of the defendants, and seek the same remedy against them. There is no danger of confusion in the trial, or of injustice to the defendants, from the joinder of the plaintiffs; but the rights *Page 393 of all parties can be adjusted in one decree, and a multiplicity of suits is prevented."
See, also, 20 R.C.L., Nuisances, § 95, p. 482. We have held to similar effect in Dyer v. Bandon, 68 Or. 406 (136 P. 652). Defendant has called to our attention Rowbotham v. Jones,47 N.J. Eq. 337 (20 A. 731, 19 L.R.A. 663). We find nothing in this case at variance with the above. Upon the other hand the court stated the rule as follows:
"Courts of equity have always exercised a sound discretion in determining whether parties are properly adjoined in a suit. Their object has been to adopt a course which will best promote the due administration of justice without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and oppressive expenses, and confusing the courts with many issues, on the other. * * The meaning of the rule, so far as it permits several to join as complainants, is that all the grievances complained of shall affect all the complainants, not precisely at the same instant, and in the same degree, but in the same general period of time, and in a similar way, so that the same relief may be had in the single suit whether there be one, two, or a dozen plaintiffs."
Defendant also called to our attention other cases, of whichFogg v. Nevada Ry. Co., 20 Nev. 429 (23 P. 840), is an example. In this case several owners of distinct pieces of property sought to enjoin a nuisance which affected all of them. The court held that a demurrer should have been sustained for misjoinder of causes of suit. We believe such a rule is too strict; the application of it results in delay; it diminishes needlessly the quantity of business which a court can transact; it brings inconvenience to witnesses, parties and attorneys, and thereby increases *Page 394 the cost of litigation. Had a similar result followed in the Circuit Court of this state, all of the witnesses and attorneys would have had to attend the sessions of the court twice without any good result coming therefrom. In this case injury to the plaintiffs and damages were alleged, not for the purpose of recovery, but in order to show that the defendant's acts had affected the plaintiffs, and had done so in a manner different from that of other members of the community. If this was an action at law for the recovery of those damages, then the injury, its time and amount would have become the primary subject of inquiry and thus there might have been some reason for the separation of the two cases; but this situation has no application in this case: Foreman v. Boyle, 88 Cal. 290 (26 P. 94); Palmer v. Waddell, 22 Kan. 352. We are, therefore, of the opinion that no error was committed in overruling the demurrers and the objections.
From the evidence, we understand that Johnson Street is the only street to which the property of the plaintiffs have access; their properties are almost in the center of the block; all of the acts of which they make complaint occurred in Johnson Street immediately in the vicinity of their homes, while many of the acts of which they make complaint occurred upon property, the fee of which was vested in the plaintiffs subject only to an easement of the public for travel purposes. The owner of the abutting property, in one respect, at least, sustains to the street a position different from that of anyone else; this peculiar position has been well stated by a writer: "For instance, the owner of the soil of the way has right to all above and under the ground, except only the right of the passage for the King *Page 395 and his people." Bacon's Abridg., title, Highways. The rights of one who is not an abutter are much more limited than those of the abutter or the sovereign; the latter may take the rocks and soil from the roadway and use them for repair purposes, but one who is neither an abutter nor the sovereign may commit no such act. The rights of the owner of property abutting upon a street have been stated in the following language:
"(1) the right of access, often referred to as that of ingress and egress; (2) the right of light and air; (3) the right of view; (4) the right to have the street kept open and continued as a public street for the benefit of their abutting property; and (5), as stated in a recent New York decision, whatever adds to the value of the street to the abutter." 3 McQuillin, Municipal Corp., § 1322.
The abutter's rights have been recognized and protected by this court from the earliest of times. Thus in Parrish v.Stephens, 1 Or. 73, we held:
"Defendants say further, that the decree ought not to stand, because an individual cannot interpose by injunction to prevent a public nuisance. The bill alleges that if defendants proceed with their buildings, the injury to plaintiff will be irreparable; and certain it is, that if plaintiff is entitled to the use and advantage of a public levee in front and in the vicinity of his block, the exclusive occupation of such levee by the erection of houses thereon would be greatly prejudicial to his interests. The damages to the property for purposes of trade and commerce, to which it is adapted by its location, can hardly be estimated. So long as the nuisance continued, so long would the business facilities of such property be obstructed or destroyed. There is no adequate remedy at law. Suit after suit would have to be brought by plaintiff, as the damages are forever accruing, and he would be compelled at last to submit *Page 396 to the wrong, or to what is less desirable, the burden of an interminable litigation."
One of our later decisions recognizes that the very nature of the situation of the abutter may cause him to suffer peculiar and special damages whenever a nuisance occurs in the street. Thus inBernard v. Willamette Box Lumber Co., 64 Or. 223 (129 P. 1039), we held:
"The owner of a town lot suffers peculiar and special damages, differing in kind from that to which the public is subjected by the obstruction of a part of the public street immediately in front of his premises, whereby ingress and egress to and from such abutting property is prevented, and such owner may maintain a suit in equity to prevent or remove the common nuisance."
To the same effect see Kurtz v. Southern Pacific Co.,80 Or. 213 (155 P. 367, 156 P. 794), wherein we said:
"The plaintiff being the owner in fee, subject to the public easement of that part of Trade Street north of the middle line thereof in front of and abutting upon his real estate, the excavation in the highway near the sidewalk on the south side of the premises, for the purpose of building the spur switch, evidences a `taking' of his property without just compensation * *."
A writer expresses the rule of the law applicable in these words:
"An abutting owner has two distinct kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally; and this regardless of whether the fee of the highway is in him or not. These rights *Page 397 are property of which he may not be deprived without his consent, except upon full compensation and by due process of law."
We believe that our previous decisions are all to a similar effect: Blagen v. Smith, 34 Or. 394 (56 P. 292, 44 L.R.A. 522); Baines v. Marshfield Sub. R. Co., 62 Or. 510 (124 P. 672); Wessinger v. Mische, 71 Or. 239 (142 P. 612); see, also, 14 R.C.L., p. 215, § 183, and p. 220, § 186. Luhrs v. Sturtevant, 10 Or. 170, and Von Buskirk v. Bond, 52 Or. 234 (96 P. 1103), do not contain anything to the contrary. In the former of the two cases, the plaintiff was not an abutter and the court said:
"No special injury to his property is averred, nor any personal injury alleged to exist, * * it is not apparent in this respect, that he suffers an inconvenience from the obstruction not common to all, certainly no peculiar or special injury to him independent of a general injury to the public."
And so the court reverted to the common rule that one who suffers no injury special and peculiar to himself, cannot maintain the suit. In the latter of the two cases the complaint did not allege that plaintiff's lands abutted upon the roads which the defendants closed, nor that these roads were the only ones accessible to the plaintiff; by inference the plaintiff admitted that there were other roads available to his use. The allegation in which he attempted to allege an injury was held only a conclusion of law. The legal existence of the road was not admitted by the defendant, but was expressly denied. We believe, therefore, that the plaintiffs have brought themselves within the rule previously adhered to by this court. The obstruction to access need not be continuous and complete; it is sufficient if the hindrance is only occasional *Page 398 and extended for a few hours at a time: Baines v. Marshfield Sub. R. Co., supra. And as has been said a number of times:
"It is no answer to the charge of nuisance that, even with the obstruction in the highway, there is still room for two or more wagons to pass, nor that the obstruction itself is not a fixture." Hoefler v. Buck, 110 Misc. Rep. 402 (180 N.Y. Supp. 563).
These rights of the abutting owner concern themselves not only with the property immediately in front of his lot, but extend to a sufficient area near by to make available to him the full enjoyment of the street. Thus we said in Morse v.Whitcomb, supra: "Nor are plaintiffs limited to the part of the roadway or easement in front of their lots." See, also, CypressLawn Cemetery Assn. v. Lievre, 55 Cal. App. 228 (203 P. 150); Benjamin v. Storr, 30 Term Rep. (Eng.) 362. We believe that the plaintiffs suffered injuries sufficiently peculiar and special to enable them to present this case.
The mere fact that the articles deposited in the roadway by the defendant were on wheels, and generally used for the purposes of travel, entitle them to no greater rights than those of another individual who deposits in the roadway other kinds of articles not commonly used for travel purposes. From the earliest of times the courts have declared that the streets and highways are for the purpose of travel. Thus in the year 1664, in the case of Maynel v. Saltmarsh, 1 Keble, 847 (83 Eng. Reprint, 1278), we find the plaintiff bringing his action charging the defendant with "erecting posts in the highway * * so stopt the way, that his corn in his close was corrupted and spoil'd." *Page 399
The plaintiff had a judgment which was affirmed. This was followed by a number of others all to the same effect. In 1812 came Rex v. Cross, 3 Camp. Rep. (Eng.) 224, in which the defendant was charged with the maintenance of a nuisance; the facts were:
"The defendant is proprietor of a Greenwich stage-coach, which comes to London twice a day, and draws up at the place in question, nearly opposite Messrs. Drummond's banking-house. There it remains for about three-quarters of an hour, taking in parcels, and waiting for passengers. On Sundays, and occasionally at other times, the defendant employs extra coaches, which ply there in the same manner. A great number of other stage-coaches from Greenwich and the adjoining villages come to the same spot. There are generally six or seven in a row close to the curb stone; often two tiers, and sometimes three."
The court, speaking through Lord ELLENBOROUGH held:
"But every unauthorized obstruction of a highway, to the annoyance of the King's subjects, is an indictable offense. * * A stage coach may set down or take up passengers in the street, this being necessary for public convenience; but it must be done in a reasonable time; and private premises must be procured for the coach to stop in during the interval between the end of one journey and the commencement of another. No one can make a stable-yard of the King's highway."
And the modern version of this the Iowa court tells us is: "No one can make a private garage of the public street." Pugh v.Crawford, 176 Iowa, 593 (156 N.W. 892, L.R.A. 1917F, 345). A vast variety of objects placed in the street to the obstruction of the passageway, or in interference with the easements of light, air or lateral support have been held to *Page 400 constitute nuisances. Thus in Strong v. Sullivan, 180 Cal. 331 (181 P. 59, 4 A.L.R. 343), a lunch-wagon in the public street obstructed the ingress and egress to the plaintiff's property; the court held plaintiff was entitled to injunctive relief. In Reed v. City of Seattle, 124 Wash. 185 (213 P. 924, 29 A.L.R. 446), the complaint alleged that the city started construction of a gasoline filling station in the street adjacent to plaintiffs' property. The lower court sustained the defendant's demurrer. This was held error, because the abutting property owner is entitled to insist that the street remain open for the purpose of travel. Likewise a bay-window in the second story of a house, sixteen feet above the sidewalk, projecting between three and four feet beyond the line of the street, was held a public nuisance: Elliott, Roads and Streets, § 830. Flower-stands used in the public streets for the sale of flowers have been dealt with likewise: Cypress Lawn Cemetery Assn. v.Lievre, supra. While even corner loungers in the public street have been held to constitute a nuisance: Norristown v. Moyer,67 Pa. 355. A peddler's stand which interferes unreasonably with the right of travel in the streets has been held to constitute a nuisance in a suit wherein a taxpayer was the plaintiff: UnitedCigar Stores Co. v. Von Bargen, 7 Ohio N.P. Rep. 420. A public scale put in the street pursuant to municipal authority has been dealt with likewise: Minnich v. Lutz, 18 Ohio N.P. Rep. 601. The entire situation resolves itself down to the well-established principle of law that the streets and the highways are for the purpose of travel, and one cannot eke out the inconvenience of his own premises by taking in the public highway. *Page 401
Under the foregoing, it must necessarily follow that the plaintiffs may maintain this suit, unless the city ordinances permitting the parking on Johnson Street have legalized the defendant's acts, or unless the plaintiffs are guilty of laches.
The city ordinances that the defendant relies upon do not, in our opinion, warrant it in storing and repairing automobiles in the street, nor in its acts of testing motors and dissembling automobiles; but even if the ordinances were capable of such construction, we do not understand that they would prevent the plaintiffs from securing the relief for which they pray.
Indeed, within certain limitations acts which were nuisances at common law may have their tortious character removed by statute. Thus it has been said:
"It is settled that, within constitutional limits not exactly determined, the legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances, which were not so, or to make things lawful which were nuisances, although, by so doing, it affects the use or value of property." Commonwealth v. Parks, 155 Mass. 531 (30 N.E. 174).
And in Pom. Eq. Juris. we find:
"Acts which at common law are nuisances may be legalized by statute, if such legislation does not amount to the taking or damaging of property forbidden by constitutional provisions. The effect of such statutes is to take away the wrongful character of the acts legalized; they are no longer torts, and hence, the remedy by injunction against them, of course, ceased." Section 1955.
But we do not believe that the parking ordinances of Pendleton were intended to convert the *Page 402 streets into repair-shops and storage spaces, disregardful of the protests of the abutter. A parking ordinance is nothing more than a police regulation which settles the matter only between the owner of the automobile and the city. Thus as was said by one court:
"It simply said, in effect, to the persons operating these cabs, so far as the city is concerned, in the congested district of the city, you may establish taxi stands at the following designated places, and the police will not molest you." Errbank v. Yellow Cab Co., 84 Ind. App. 144 (149 N.E. 647).
We believe that the same construction is the only proper one to place on the ordinances of the City of Pendleton.
It is well established that while additional uses may be imposed upon a street not submersive of or impairing the original street, such as subjecting a street to new modes of travel, or laying down gas or water mains; yet the rights of the public to use it as a street and of the adjacent lot owner to enjoy it as a means of ingress to and egress from his property cannot be materially impaired. The city has the right to regulate traffic, but it has no power to appropriate the easement of the street to the private business of some individual. The ineffectiveness of franchises, licenses and various privileges granted by city ordinances to deprive one of a property right is illustrated in the following cases: Cohen v. Mayor of NewYork, 113 N.Y. 532 (21 N.E. 700, 10 Am. St. Rep. 506, 4 L.R.A. 406); Strong v. Sullivan, supra; McQuaid v. Portland Vancouver Ry. Co., 18 Or. 237 (22 P. 899); Baines v.Marshfield Sub. R. Co., supra; Kurtz v. Southern Pac. Co.,supra; Campbell v. Mayor, 1 K.B. 869; Branahan *Page 403 v. Cincinnati Hotel Co., 39 Ohio St. 333 (48 Am. Rep. 457); Elliott, Roads Streets, § 834; 13 R.C.L., Highways, § 183.
And even if we should believe, as the defendant contends, that Johnson Street is showing some evidence of transforming itself into an automobile row, or gasoline alley, still this would not justify the defendant in depriving the plaintiffs of their established rights of ingress and egress and to have the street remain open for the purpose of travel. It was said by this court in Kurtz v. Southern Pacific Co., supra:
"He is entitled to make such use of his own buildings as suits his convenience or gratifies his fancy, and, so long as he does not trench upon the public right, he must be protected in the enjoyment of his prerogative."
It is well established that the doctrine of laches is inapplicable to public rights. As was said by Lord ELLENSBOROUGH, in Rex v. Cross, supra: "It is immaterial how long the practice may have prevailed, for no length of time will legitimate a nuisance." And as was said in Strong v. Sullivan,supra:
"Nor does the finding that the street in front of plaintiff's property had been used every night by defendant and his predecessor for more than four years amount either to a finding of laches or of the operation of the statute of limitations against plaintiff. This nuisance was not of a permanent character, but was a continuing one. It involved no permanent structure, but was committed daily by the bringing of defendant's ambulatory cafe in front of plaintiff's building. No lapse of time can legalize a public nuisance and a prescriptive right cannot be maintained against a public nuisance where the action *Page 404 is brought by a citizen who has suffered special injury in consequence thereof."
It is not necessary for the plaintiff to first institute an action at law: Bernard v. Willamette Box Lumber Co., supra. We have not undertaken to distinguish case by case the numerous authorities cited in the able and exhaustive brief of counsel for the appellant. But we believe that we have accomplished the same result by a consideration of the principles involved; to have undertaken to do more would unnecessarily lengthen this decision.
It follows from the foregoing that we believe that the defendant's acts in Johnson Street in the immediate vicinity of plaintiffs' abutting property constitute a public nuisance. One automobile parked in a street, as was said in Bradley v. Cityof Oskaloosa, 193 Iowa, 1072, 188 N.W. 896, may not constitute a nuisance; perhaps not in Oskaloosa, but a constant repetition of parking many cars in the street; many acts of repairing automobiles; using the street repeatedly for testing motors and the projection of much partially consumed gas into the atmosphere, surely warrants the finding that these acts when continued over a period of about three years constitute a nuisance. Such acts fall within the classification of repeated and continuing conduct, the damages arising from which can be estimated only by conjecture and not by any accurate standard; it is this situation which gives equity its jurisdiction to abate the nuisance.
An abutter cannot object to any use of the street which is an incident to public travel, unless such use interferes with the rights which he possesses *Page 405 as an abutting property owner. The right to stop when the occasion demands, generally is an incident of the right of travel. We do not understand that this incidental right which the defendant enjoys, together with all others, when using the street for travel, is one that has caused the plaintiffs any inconvenience or damage; in fact, we do not understand that the plaintiffs have complained of the defendants' exercise of this privilege. The decree of the lower court restrained the defendant from any parking along Johnson Street. While the decree of the lower court will be affirmed in all other respects, it must be so modified as to permit the defendant to park its cars along Johnson Street, as in all other parts of Pendleton, whenever this privilege is exercised by it as an incident to travel and not in violation of city ordinances or state laws; otherwise the decree is affirmed. Costs to neither party.
MODIFIED.
BELT, J., was not present at the hearing of this case. *Page 406