Concttbbing Opinion BY
McCabthy, J.,January 15, 1896:
The reasoning and conclusions of my learned brethren in reversing the action of the court below have my fullest concurrence, but I would go further than they and also reverse the action of the lower court in dismissing, the second, third and fourth exceptions to the report of the jury.
This proceeding was begun by petition for a jury to assess the damages done by reason of the vacation of a portion of Melon street. The finding of the jury is “that,the damage to the claimants’ property upon Melon street is caused by the clos*98ing up of Ninth street and Melon street, thus depriving them of an outlet eastward by way of Ninth street to the general system of streets in the city of Philadelphia.” This blending and confusion of two distinct vacations is material and fatal error. In the silence of the jury who shall say what proportion, if any, of the pecuniary damages which they afterwards award to the several claimants is due to the one vacation and what proportion, if any, is due to the other. Indeed, since the jury finds that the injury consists in depriving the claimants of “ an outlet eastward by way of Ninth street to the general system of streets ” is not the conclusion fully justified that the vacation of Ninth street is the sole cause of this injury, since that, without more, wholly deprives claimants of an outlet eastward ? The fact is that although this proceeding purports to be for the vacation of Melon street, the question virtually submitted is whether claimants are entitled to damages by reason of the vacation of Ninth street, and it is because of their appreciation of this that the jury have shaped their finding as it appears in the report.
Nothing can be clearer on both reason and authority than that the owner of land abutting upon a highway has a double right in the easement thereof. He has first, the right of travel along, upon and across the highway, which belongs to him, as a member of the public -at large and is enjoyed by him in common with all other members of the public; he has secondly a right to use the highway as a means of approach to, ingress upon and egress from his land, the enjoyment of which is peculiar to him as owner of the land. For an interference with the first of these rights he cannot recover damages although he may feel the deprivation more keenly than others of the public at large. It is damnum absque injuria. On the other hand, if his special right of access, ingress or egress is injured or destroyed he may recover damages for that. In the present case this court has sustained the assignments of error to the dismissal of the exceptions directed to the point that unless the claimant is the owner of property abutting on the portion of the street vacated no damages can be awarded to him by reason of the vacation, by affirming the principle just stated, and the review of authorities in the opinion renders it superfluous for me to cite any of the very long line of decisions by which it is *99established; but if the owner of land upon Melon street not abutting on the portion of the street vacated cannot claim damages for the vacation of Melon street itself because his special right of access, ingress and egress has not been interfered with, a fortiori, he cannot claim them for the vacation of another and different street. It is sufficient to mention the case of Lawrence v. Philadelphia, 154 Pa. 20, as an authority directly in point upon this position, but the principle already stated and so abundantly sustained by authority rules the question conclusively without more. The clear error of the finding of the jury is practically conceded by the counsel for the appellees who propose to cure it by the filing of “ a release of damages for the vacation of Ninth street so as to preclude the possibility of a double recovery.” It is, however, manifest that the filing of such a paper cannot cure the inherent vice of the finding. I would therefore sustain the fifth, sixth and seventh assignments of error and reverse the action of the court below in dismissing the exceptions upon which these assignments are based.