(specially concurring.) — Several propositions involved in this ease are already Well settled by previous decisions; and the only matter open to discussion, as I view it, is whether or not, by reason of constitutional or other prohibition or limitation, a city or town or a board of supervisors is bound in all eases or in any case, before vacating a street, alley'or highway, to institute a condemnation or other proceeding in order to ascertain the damage done to abutting property and, before the vacation is awarded, to pay or secure to the abutter the amount so ascertained.
If there be any such provision, it is found in the Constitution, and is known as See. 18 of Art. 1 of the Bill of Rights, reading as follows:
“Private property shall not be taken for public use without just compensation first being made, or secured to bo made, to the owner thereof, as soon as the damages shall be assessed by a. jury, who shall not.take .into consideration.any *78advantages that may result to said owner on account of the improvement for which it is taken.”
This article differs from similar ones found in many other state constitutions, in that it applies only to property taken, and does not expressly cover property not taken, but merely damaged by the taking of other property. The statute law of the state authorizes and permits the proper authorities of the state, as cities and towns, to vacate streets and alleys without providing for the ascertainment or payment of damages in advance of the vacation; and it is everywhere held that the question of vacation is primarily legislative in character and will not be reviewed, except, perhaps, where the action of the council is arbitrary or there has been a clear abuse of the discretion lodged in that body. See Walker v. City of Des Moines, 161 Iowa 215; Spitzer v. Runyan, 113 Iowa 619; McLachlan v. Gray, 105 Iowa 259.
Again, in this state, under our decisions, a street or alley so vacated may thereafter be conveyed to a private individual, under Sec. 883 of the Code. Spitzer v. Runyan, supra; City of Marshalltown v. Forney, 61 Iowa 578; Harrington v. Iowa Cent. R. Co., 126 Iowa 388; City of Lake City v. Fulkerson, 122 Iowa 569; Tomlin v. Cedar Rapids & Iowa City Railway & Light Co., 141 Iowa 599. By our more recent cases, which overruled some prior ones, all abutting property owners who suffer some special damage, different in bind rather than in degree from those sustained by the general public, may have compensation for such damages as are actually done to his property in its then condition. Ridgway v. City of Osceola, 139 Iowa 591; McCann v. Clarke County, 149 Iowa 13; Long v. Wilson, 119 Iowa 267; Borghart v. City of Cedar Rapids, 126 Iowa 313; Sutton v. Mentzer, 154 Iowa 1. But none of these eases, and no others with which 1 am familiar, hold that all property abutting upon a street or alley is especially damaged by the vacation thereof, as is the ease where the physical property of one is taken for a public use. Where property is taken, rather than damaged, for public use, there *79must be compensation paid or secured in advance; for, of course, the owner from whom it is taken is damaged to the extent of the value of that property. But where the property is not taken, and there may or may not be damage due to a change in the public use of what has theretofore been taken, there is no taking, but simply damage due to change in use.
The first question, then, in the case is whether or not plaintiff suffered damage different from that suffered- by all' people who might use the alley before its vacation. It is not claimed that -the alley was actually used for ingress to or egress from the building. The building was not so constructed that it could be entered from the alley, and the only exits and entrances were on Grand Avenue and Locust Street; so that the damages, if any, from the closing of the alley were not different in kind from what they would have been had the first street running north and south immediately west of the block in which the Coliseum is located been vacated. Neither afforded a direct entrance to the building, and the damage in either event was the same as that suffered by the public in general, save in degree. In other words, while the alley abutted on the lots on which the Coliseum was located, it was not made an appurtenance to the building and did not, any more than any other street' or alley in the vicinity, afford a means of access to the building. This was the situation when the vacation of the alley was made, and it seems to me that the damage, if any, which the owners of the lots suffered was damnum absque injuria, and that no action would lie to recover damages by reason of the vacation. This seems to be the general holding of the courts. Freeman v. City of Centralia, (Wash.) 120 Pac. 886 (67 Wash. 142, 29 Ann. Cases 786, 787); Heller v. Atchison, T. & S. F. R. Co., 28 Kans. 625; Dillon on Municipal Corp., (5th Ed.) Vol. 3, Sec. 1160; Borghart v. City of Cedar Rapids, 126 Iowa 313; Hall v. City of Lebanon, 31 Ind. App. 265 (67 N. E. 703); Dempsey v. City of Burlington, 66 Iowa 687; 2 Elliott on Roads and Streets (3d Ed.) Sec. 1181; Hall v. Atlanta, B. & A. R. Co., *80(Ala.) 48 So. 365; Canady v. Coeur D’Alene Lumber Co., (Idaho) 120 Pac. 830; Van Valkenberg v. Rutherford, (Neb.) 139 N. W. 652; Newark & B. R. Co. v. Town of Montclair, (N. J.) 85 Atl. 1028; In re Goldman, 132 N. Y. Supp. 607; Williams v. Carey, 73 Iowa 194; Dantzer v. Indianapolis Union R. Co., (Ind.) 39 N. E. 223; Horton v. Williams, (Mich.) 58 N. W. 369; Harrington v. Iowa Central Railway Co., 126 Iowa 388; Enders v. Friday, 78 Neb. 510 (111 N. W. 140, 15 Ann. Cases 685); Littler v. City of Lincoln, 106 Ill. 353; Smith v. City of Boston, 7 Cush. (Mass.) 254; Fearing v. Irwin, 55 N. Y. 486; Buhl v. Fort St. U. Depot Co., (Mich.) 57 N. W. 829; Cram v. City of Laconia, (N. H.) 51 Atl. 635 (57 L. R. A. 282) ; Ridgway v. City of Osceola, 139 Iowa 590; Parker v. Catholic Bishop of Chicago, (Ill.) 34 N. E. 473; Natick Gaslight Co. v. Inhabitants of Natick, (Mass.) 56 N. E. 292; Kimball v. Homan, 74 Mich. 699 (42 N. W. 167); Van Wagenen v. Cooney, (N. J.) 16 Atl. 689 (45 N. J. Eq. 24) ; Perkins v. Ross, (Tenn.) 42 S. W. 58; Gerhard v. Seekonk River Bridge Com., 15 R. I. 334 (5 Atl. 199) ; Jackson v. Birmingham F. & M. Co., (Ala.) 45 So. 660; Whitsett v. Union Depot & R. Co., (Colo.) 15 Pac. 339; Ellsworth v. Chickasaw County, 40 Iowa 571; also cases cited in Lewis, Eminent Domain (3d Ed.), Sec. 202, p. 380, and Sec. 206, p. 388. If damages be awarded in a suit at law, they will be with reference to the present use of the property; although, as the vacation will be assumed to be permanent, both past, present and future damages may be awarded. But it is damages to the property as it then stands, and not as it might possibly be used in the great future. In other words, the damages should be assessed with reference to the present improvement of the property, and not with reference to how it might be improved in the future, were the present building removed or destroyed: this for the reason that it is conceded that the legislature had the power to grant municipalities the right to vacate streets or alleys.
If, then, one improves with reference to an alley or *81street, he may in some cases recover damages if it be vacated, and the damages must be based upon the condition of the property when the damage is inflicted, and not upon some possible future use. His acceptance of an easement in the street and alley is only to the extent that he indicates that he wishes to use it; and after such acceptance, he cannot have damages awarded on the theory that at some future time he might want to use it in some other manner. He must take 'notice that, after such acceptance, the city may conclude to vacate the street or alley, as it has the undoubted right to do, and if it does this before he makes the change, it is with his eyes open, and he can be recompensed only for the damage done his property at the time of the vacation. If, at that time, he has made no such use of it as to utilize the street or alley, and is not damaged because of that fact, he cannot be heard to say, — “Well, although I am not damaged now at all, I may sometime in the remote future be damaged if I conclude to improve the property so that I may be damaged.” Such damage would be wholly remote, speculative and contingent and could not be awarded in a suit for damages. If, in other words, one has so improved his property as not to use an alley for ingress or egress or any other legal purpose except to have a paper alley, he cannot recover damages because, at some remote future time, he may change his improvements so as to need this ingress or egress. In this respect, the case differs essentially from one where physical property is taken. The right to vacate after improvements are made is conceded; and if, when vacation is made, no damages are done, none may be awarded upon the theory that, at some future time, it is possible that a damage will be done. This is clearly pointed out in Manda v. City of Orange, (N. J.) 29 Ann. Cases 581; Selden v. City of Jacksonville, (Fla.) 14 L. R. A. 370; Fairbanks v. Fitchburg, 110 Mass. 224, and Pinkham v. Chelmsford, 109 Mass. 225.
I am quite clear that the testimony in this case shows no damage to the plaintiffs which is different in kind from that *82suffered by the general public, and that they have no right to recover because, at some future time, they may so improve the property as that the alley would be useful to them. Aside from this, assuming, as we must, that the city was expressly given the power to vacate the alley, and conceding that the power is primarily legislative in character, it is apparent that, if the council acted without having damages assessed, it was on the theory that there were no damages to be assessed, and plaintiffs, in order to be entitled to any relief, must affirmatively show that there was such damage. This they have failed to do. But assuming that they have done so, they are not, in my opinion, entitled to have the vacation ordinance held invalid and to an injunction against the obstruction of the alley. This proposition is sustained by Parker v. Catholic Bishop of Chicago, (Ill.) 34 N. E. 473 (146 Ill. 158), in a learned opinion by Shope, J.
The remedy in such cases, as is pointed out in the opinion, is by an action at law for damages; and this is all that is held in our previous cases with reference to the recovery of damages for the vacation of a street or highway.
As pointed out in the majority opinion, there was no taking of any of plaintiffs’ property. What was done amounted merely to a change in the use of property already taken for a public use, and the title to this property was' already in the public. The damage to plaintiffs’ property, if any, was wholly consequential, and there was no direct taking. The act of the city was especially authorized by the legislature and was clearly within its power. There is no claim that the vacation was arbitrary or in bad faith, and the only question remaining is, Is the statute authorizing the vacation without provision for compensation in advance to abutting property owners- unconstitutional and void? It seems to me that it is not, for the reason that there is no presumption of damage to any property from the vacation of a street or alley. Whether or not there was any such damage depends upon the proof, and the damage does not result from *83a taking, but at best from some injury done to the property arising out of a change in the use of property already taken. If appellees are right in their contention, then no vacation can be made of any street or alley without calling a sheriff’s jury to estimate damages, although no property may in fact be damaged in the least. The constitutional provision upon which reliance is placed does not, in my opinion, cover the ease. This conclusion does not necessarily depend upon the proper definition of the word “taken”, as found in our Constitution. I am inclined to the view, however, that our Constitution does. not refer to consequential injuries or damage to property where the property itself is not taken. This matter is fully and learnedly-treated in Nichols on Eminent Domain, Secs. 52 to 56, inclusive. The author reaches the conclusion that Eaton v. B. C. & M. R. Co., 51 N. H. 504, relied upon by appellees’ counsel, and which is the basis of all decisions of that kind, is fallacious; and he undertakes to demonstrate the same by a reference to practically all the English and American cases.
I need not do more than quote from a decision of the Supreme Court of the United States in support of this view (Transportation Co. v. Chicago, 99 U. S. 635), in which the court said:
“But acts done in the proper exercise,of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be- a taking within the meaning of the constitutional provision. • They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority. The extremest qualification of the doctrine is to be found, perhaps, in Pumpelly v. Green Bay Co., 13 Wall. 166, and in Eaton v. Boston, C. & M. Railroad Co., 51 N. H. 504. In those eases it was held that permanent flooding of private property may be regarded as a ‘taking’. In those eases there was a physical invasion of the real estate of the *84private owner, and a practical ouster of his possession. But in the present case there was no such invasion. No entry was made upon the plaintiffs ’ lot. All that was done was to render for a time its use more inconvenient.”
In Nichols’ work (page 59) will be found a large number of cases sustaining this view.
The gist of the contention is that, where property already devoted to a public use is put to some other one which is also public, resulting in consequential damages to other property, there is no taking. This view is sustained in Talcott v. City of Des Moines, 134 Iowa 113, and Long v. Wilson, 119 Iowa 267. The authorities from other states are conflicting, and many cases might be cited in support of appellees.’ contention; but as I view it, the plaintiffs were not, under this record, entitled to have the vacation ordinance declared invalid or to have any obstruction in the alley removed. Their remedy, if any, was an-action at law for damages. I therefore concur in the conclusion reached by the majority.