(dissenting) — I cannot concur in that part of the majority opinion which purports to answer the second question. Upon this point we must first determine whether the complaint shows that the respondent will suffer special physical damages different-in kind from those suffered by the general public. The purpose of petitioners to obtain advantages is immaterial, since there is no allegation of collusion or fraud; Ponischil v. Hoquiam Sash etc. Co., 41 Wash. 303, 83 Pac. 316, and if special damages there be, it must be found in the allegation charging a material shutting off of light and air from respondents’ prop*511erty. In this connection it must be borne in mind that lots 7 and 8 are sixty feet in width; that the vacation affects only the middle forty feet, and that respondents’ property does not abut on the vacated portion of the alley. True, we have said in Freeman v. Centralia, 67 Wash. 142, 120 Pac. 886, Ann. Cas. 1913D 786, that the property of the there complaining parties did not abut or touch upon the part of the street actually vacated, but that was not the controlling factor in the case. Indeed, the court said:
“Authority upon the particular proposition advanced is divided; but this court has, in several cases, aligned itself with the great majority of American courts in holding that a property owner does not come within the rule of compensation unless his property abuts upon or touches that part of the street which is actually vacated, or a special or peculiar damage is made to appear; or, to state the proposition in its elementary form, unless his injury differs in kind rather than in degree from that suffered by the general public. 15 Cyc. 665.”
Clearly then, it was there recognized that rights may exist in owners of other than abutting property if there be special or peculiar damages. The courts of the state of New York seem to have gone as far as any in the direction the majority is taking, and in Hindley v. Manhattan R. Co., 185 N. Y. 335, 78 N. E. 276, it was said:
“Such easements are not co-terminous with the street, but, in the absence of special circumstances, of which there was no proof in the case before us, are confined to that portion of the street which is directly in front of the property affected.”
Plainly this does not support the position of the majority, nor is it in anywise contrary to the rule laid down in Freeman v. Centralia, supra. The other cases cited by the majority from other states are wholly *512beside the point, so much so that an analysis of them is unnecessary. They furnish no authority whatever for the position taken by the majority. Industry of eminent counsel has not resulted in bringing to our attention any case which goes so far as to hold as does the majority opinion, that, “the correct rule is that only those directly' abutting on the portion of the street or alley vacated, or alleged to be obstructed, or those whose rights of access are substantially affected, have such a special interest as to enable them to maintain an action,” and I have grave fears that the announcement of such a rule is so great a departure from the precedents of the past as will prove to be revolutionary in its nature, and result in the destruction of what have heretofore been regarded as thoroughly well vested rights.
In my judgment, the allegations of the complaint to the effect that the proposed occupation of the vacated portion of the alley will shut off light and air, supported by the further allegations as to the proposed improvements which obviously sustain the conclusion, show a special physical damage to respondents differing in kind from that suffered by the general public. The statute expressly exempts vested rights, and, in the absence of any statute, no vested right could be so taken or destroyed. There seems no doubt that generally in this country the right of adjacent property to enjoy light and air from a public street or alley is a vested right. Field v. Barling, 149 Ill. 556, 37 N. E. 850, 41 Am. St. 311-n; Kellogg v. Cincinnati Traction Co., 80 Ohio St. 331, 88 N. E. 882, 17 A. & E. Ann. Cas. 242, and note following.
Respondents having a vested right are not only protected by the statute, but by the common law, and that right cannot be cut off or adversely affected by the *513vacation proceedings. Hence, so long as the right exists, equity will enjoin interference therewith.
The judgment appealed from should, therefore, be affirmed.
Parker, Fullerton, and Mitchell, JJ., concur with Tolman, J.