On Petition for Rehearing.
[103 Pac. 775.]
Mr. Justice Kingdelivered the opinion of the court.
12. It is insisted in appellants’ petition for a rehearing that our conclusion, as heretofore announced, is in conflict with the principles enunciated in Van Buskirk v. Bond, 52 Or. 234 (96 Pac. 1105), in which it is held that a suit will not lie at the instance of private parties. In that opinion it is clearly stated that a denial of a right to a private party to restrain the obstruction of a highway is limited to cases where it does not appear that he has sustained some damage or injury differing in kind from that suffered by the general public, and that, even where there is evidence establishing such special injury, it must be clearly established or “free from doubt.” The words quoted were not intended in a literal sense, or that no possibility of a doubt should exist, but merely that, after an examination of all the testimony, if the court could not, with reasonable certainty, satisfy itself as to the conclusion to be deduced from the testimony, the cause should be remanded for trial at law. After a careful examination of the testimony presented, we deemed it clear therefrom that plaintiffs incurred such special injury by reason of the obstructions complained of as to take the case out of the exceptions noted in Van Buskirk v. Bond, thereby entitling them to maintain the suit in their behalf. We have again scrutinized the record to ascertain the accuracy of our conclusion upon this *424point, and find no reason to change our view. Nor are plaintiffs limited to the part of the roadway or easement in front of their lots. As held, the easement is appurtenant to their premises, is 24% feet in width, running east and west, and extends along the south line, and a part of blocks 11 to 20, inclusive,
Concerning the question of notice on the part of McDaniel and others, we do not deem it important to inquire whether they had actual notice of the right to use the strip of land in controversy for the purpose claimed; for the record clearly discloses sufficient facts to have put them on inquiry, from which notice must be implied. The details bearing on this feature were sufficiently considered, making a further elucidation of the subject at this time unnecessary;
The rehearing is denied.
Reversed: Rehearing Denied.