*221Denied April 25, 1918.
On Petition for Rehearing.
(156 Pac. 794.)
Mr. Justice Bensondelivered the opinion of the court.
Defendant contends very strenuously that the opinion heretofore rendered in this case is inconsistent with the former opinions of this court in the cases of McQuaid v. Portland & V. Ry. Co., 18 Or. 237 (22 Pac. 899); Portland & W. V. R. Co. v. City of Portland, 14 Or. 188 (12 Pac. 265, 58 Am. Rep. 299); and Willamette Iron Works v. Oregon R. & N. Co., 26 Or. 224 (37 Pac. 1016, 46 Am. St. Rep. 620, 29 L. R. A. 88). However, a careful analysis of the decisions in these cases does not sustain counsel’s position. In McQuaid v. Portland & V. Ry. Co., 18 Or. 237 (22 Pac. 899), Mr. Chief Justice Thayer, after an extended discussion in which he uses the language quoted by defendant, concludes the whole matter in these words:
“But I maintain, further, that the rights of such adjoining land owners in a part of the adjacent highway sufficient for the reasonable enjoyment of their premises constitute in them a property interest, whether they own the fee to the center of the highway, or merely an easement therein; that in either case it is a proprietary right, which they purchased with the premises, as appurtenant thereto, and which they cannot be deprived of, except by the same power, and upon the same terms, by which they may be deprived of any other property; and that the grounds of liability of a railway corporation for an encroachment upon those rights, under an attempted appropriation of the highway, is not carelessness or negligence in the location of its road, but a wrongful usurpation, *222which no legislative power can sanction, under the Constitution of the state, without providing for just compensation. ’ ’
The next case relied upon by counsel (Portland & W. V. Ry. Co. v. City of Portland), after the generalization quoted in the petition, follows it with this language:
“The decisions, however, are not entirely harmonious, where the public have only an easement in the street or highway; and in some of the cases it has been held, as against the proprietor of the soil, the use of the street or highway for the purposes of a railroad created an additional burden or servitude, which, under the Constitution, he could not be deprived of without compensation: Ford v. Chicago & N. W. R. Co., 14 Wis. 609 [8 Am. Dec. 791]; Pomeroy v. Milwaukee & C. R. Co., 16 Wis. 640; Gray v. St. Paul & P. R. Co., 13 Minn. 315 (Gil. 289); Williams v. Natural Bridge P. R. Co., 21 Mo. 580. And this, Judge Cooley says, appears to be the weight of authority: Cooley Const. Lim., 549. But where the fee of the streets is in the city corporation, and not in the adjoining owner, a different rule has been applied. (Citing a number of cases.) It may be—it is not necessary for us to decide the question—that private citizens owning adjoining property may have rights or estate in or to the use of streets or public places over which the power of the legislature is not supreme or plenary. Whatever their rights may be, we are not required to consider upon this record.”
The third case referred to by counsel is that of Willamette Iron Works v. Oregon R. & N. Co., 26 Or. 224 (37 Pac. 1016, 46 Am. St. Rep. 620, 29 L. R. A. 88), and from this opinion the petition quotes a generalization ; but following the matter quoted by defendant in his argument we find this language:
*223“But there is a limitation to legislative or municipal power over a street, which cannot he exceeded without invading the constitutional rights of abutting owners. An abutting proprietor is entitled to the use of the street in front of his premises to its full width as a means of ingress and egress, and for light and air, and this right is as. much property as the soil within the boundaries of his lot; and therefore any impairment thereof or interference therewith, caused by the use of the street for other than legitimate street purposes, is a taking within the meaning of the Constitution, whether the fee of the street is in the abutting owner or not.”
This doctrine has been recently reiterated by this court in Tooze v. Willamette V. S. Ry. Co., 77 Or. 157 (150 Pac. 252).
• The evidence discloses that the spur track of which complaint is made is a special injury affecting no other property owner than plaintiff, that it will materially and premanently affect his ingress and egress to and from his lots, and consequently his property rights are invaded in a manner which can only be lawfully done by compromise or condemnation.
The petition for rehearing is therefore denied.
Rehearing Denied.
Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.