(dissenting). — I. The majority holds that the vacation of the alley in question has not substantially interfered with ingress to and egress from appellees ’ abutting *85property; that, even''if the contrary be true, this gives no more than the right to sue £or damages, and does not basé their suit to enjoin obstructions of the alley and abate one already put in; that the provision of our Constitution which requires payment before taking private property for public use does not apply; and that when we said repeatedly that it does apply, we indulged in mere dictum. From this I am constrained to dissent, because:
(1) As I view it, the record shows, conclusively, that existing ingress and egress were substantially affected.
(2) If our own decisions settle that what was done in this case is a taking of private property for public use, our Constitution settles that compensation must first be made, and decisions in other states to the contrary are of no avail.
The controlling question is, then, whether we have thus settled the law. The majority concedes that we have often said that the taking at bar was one to which the constitutional requirement applies. I firmly believe we have not only said, but have decided so. My dissent is induced largely because I am unwilling to join in continuing a practice of so dealing with our decisions as that the profession is constantly confronted with what seem to be hopelessly conflicting pronouncements — distinctions without reason, which are purely media for accomplishing the temporary overruling of a case, and at the same time permitting it to stand, apparently— a method by which our decisions are law in one case and not law in another. 'Whenever convinced that our said decisions ought to be overruled, I will vote that they be. But so long as they stand, disregarding them by indirection confuses the law and disobeys the Constitution, and I must decline to help do either.
En passant, it may be not amiss to point out that much upon which .the majority relies deals with constitutions differing from ours in that there is no requirement that compensation be first made; other cases are based on the proposition that, in cases like the one at bar, the owner suffers no *86injury except in common with the general public, a doctrine which we have, expressly repudiated, and which the majority still repudiates. Still others- excuse-disobeying the Constitution because it is more convenient than obeying.
II. The elaborately fortified statement that the city has power to vacate alleys is true but immaterial, and it will conduce to clarity to eliminate it now. The power is conceded. Ridgway’s ease, 139 Iowa 590, 591; Long’s case, 119 Iowa 267, 270. The propriety of vacation cannot be reviewed unless discretion is abused. Walker’s ease, 161 Iowa 215. But that there is power to vacate will not exempt from liability those who exercise it if they seriously obstruct access to plaintiffs’ property and impair its value. Long’s ease, 119 Iowa 267, 270; Griffin v. Shreveport & A. R. Co., (La.) 6 So. 624; Baltimore & P. R. Co. v. Fifth Baptist Church, 2 Sup. Ct. Rep. 719; Cook v. Mayor, L. R. 6 Eq. 177; Crawford v. Village of Delaware, 7 Ohio St. 459 at 471; Thompson v. Pennsylvania R. Co., (N. J.) 14 Atl. 897.. If appellee were seeking to review the order of vacation on certiorari, or to enjoin its being made, the labor of the majority on the point would be of use. That there is power to yaeate has no bearing on whether damages must be paid before possession can be taken under a vacation rightly ordered.
III. Without taking up at this time the question whether interference with making new entrances and exits in future can be considered, the record shows that appellees’ building has an exit upon Grand Avenue which teams may enter, and presumably this is for- taking loads into and out of the building. On Locust Street, upon the south line of the building, are several exits not large enough to admit a team and wagon. Before this alley was. closed, a load could be put upon a wagon on Locust Street, driven north in the alley to Grand Avenue, and then taken into the building through the entrance on Grand Avenue; or a load might be taken out of the building by way of the entrance on Grand Avenue, taken down the alley and unloaded upon the sidewalk on Locust Street, *87and taken into the building through the entrances on that street.
The majority concedes that the effect of vacating the alley and erecting a pergola therein is to prevent the use of this alley by teams, and further concedes that the building is so arranged now that all who enter or leave it must do so by the exits on Locust Street and on Grand Avenue. What the owner could before do by driving the length of the alley must now be done by driving one block east or west, then north or south for the length of the alley, and then another block either east or west. It seems clear that the opinion errs in finding that access was not substantially affected — and the cases following hold that it was.
It is the unbroken current of judicial decision that such interference with access need not be total. If there are two exits upon a street and the street be so blocked that either exit can be approached from the open end of the street, while neither exit could be reached from the other without climbing the obstruction, it would not be claimed that there was no remedy because not all access to the two entrances and exits had been taken away. While blocking a street at one end still permits entrance and exit by way of the unblocked end, such'partial closing will base some remedy.
According to Vanderburgh’s case, (Minn.) 108 N. W. 480, Aldrich v. City of Minneapolis, (Minn.) 53 N. W. 1072, decides, “that to entitle a party to maintain a private action for the obstruction of a public street, it was unnecessary for him to show that he was cut off from all access to his property. ’ ’ And the Vanderburgh ease, speaking for itself, declares that “A property owner’s special right in such cases is not limited to the part of the street on which his property abuts; his right in this respect is the right of access in any direction which the street permits, and as affecting the same, no distinction can be drawn between a partial and a total destruction. The impairment of the right is a legal injury, differing in degree only from its total destruction. ’ ’
*88A mere impairment of the easement of access suffices. Coyne v. City of Memphis, (Tenn.) 102 S. W. 355. And partial cutting off of the access will base an action. City of Chicago v. Burcky, (Ill.) 42 N. E. 178; Village of Winnetka v. Clifford, (Ill.) 66 N. E. 384.
A partial destruction or diminution is a taking. Mills, Eminent Domain, See. 30; Pumpelly v. Green Bay Co., 13 Wall. 166, 177; Cushman v. Smith, 34 Me. 247; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308.
That the impairment is but partial goes merely to the amount of compensation. Ridgway’s case, 139 Iowa 591 (citing Heinrich’s case, 125 Mo. 424; Lindsay v. City of Omaha, (Neb.) 46 N. W. 627; Glasgow v. City of St. Louis,(Mo.) 17 S. W. 743).
It suffices that there is serious obstruction of access (Griffin’s case, (La.) 6 So. 624), or that “convenient” access is cut off (McCann’s case, 149 Iowa 13).
It is an interference if there does not remain free access to the lot and building substantially in the manner the owner would have enjoyed in case there had been no interference. Indiana B. & W. R. Co. v. Eberle, (Ind.) 11 N. E. 467. It is actionable that a street is crossed so as to leave an abutter’s lot in a cul de sac. Johnsen v. Old Colony R. Co., (R. I.) 29 Atl. 594.
In an action to close the eastern end of a street in a square on which appellants owned land and lived, west of the point to which it was proposed to close the street, it appeared that, in order to go east where the center of trade lay, they would first have to go west'to the next street and then north or south another street and thence east; and it was held that the court had no authority to close the street without the owner’s consent, as it would be depriving him of property without due process of law. Gargan v. Louisville, N. A. & C. R. Co., (Ky.) 12 S. W. 259.
In Pennsylvania Co. v. Stanley, (Ind.) 37 N. E. 288, 289, the alley was closed at one end so as to cut off the entrance *89to it at that end, and it is held that this presents a physical disturbance to the right to use the alley, for which compensation must be made. It is said:
“This act necessarily and directly materially interfered with ordinary and usual means of access to the lots. It is a matter of general knowledge that the alleys in the rear of town or city lots are usual means of reaching the lots for many purposes, and they ordinarily add to the value and convenience of the property. In this instance, both the allegations and proof show a material diminution in the value of the lots by reason of the obstruction. ’ ’
It is said further:
“While closing up one end of an alley does not shut the owner in as completely as closing up both, it does largely deprive him of the usual means of access. ’ ’
“Little good would it do to purchaser to have an open street directly in front of him, but blocked on either side. The law goes much beyond our statement, for it entitles the owner to all the streets and ways as such laid out upon the plat by which he purchases. So runs the great current of judicial opinion.” City of Indianapolis v. Kingsbury, 101. Ind., 200, 212 (citing Rowan v. Town of Portland, 8 B. Mon. (Ky.) 232; Trustees of Augusta v. Perkins, 8 B. Mon. (Ky.) 207) ; City of Winona v. Huff, 11 Minn. 119; Huber v. Gazley, 18 O. 18; Town of Derby v. Alling, 40 Conn. 410; Moale v. Mayor, 5 Md. 314; City of Logansport v. Dunn, 8 Ind. 378; City of Evansville v. Evans, 37 Ind. 236.
In State v. Superior Court (Wash.), 66 Pac. 385, at 388 the Supreme Court of Washington says, concerning this Indiana decision:
“But it is unnecessary to cite further cases, although there are many in point; in fact, the current of decision is almost universal in this respect.”
2.
The Coliseum building is a place for large gatherings of *90people. On the east side of it, where the vacated alley is, there is, at present, no exit. If interfering with entrances and exits existing at the time of the vacation is a taking of property within the meaning of the Constitution, I think it as much such taking to interfere, by the vacation, with all potential entrances and exits. The efforts of the opinion to show that such future injury would be difficult to compensate for in advance of its happening prove that, if there be such difficulty, there must be greater latitude in formulating rules for measuring the damages due, but do not establish that there is no such damage. While Pennsylvania Mut. L. Ins. Co. v. Heiss, 141 Ill. 35, at 55, 56, holds with the majority that first ascertaining and paying is not a condition precedent to the right to vacate, it is not in confusion as to what is the scope of the vacation in relation to the future. It says:
‘ ‘ The damages .... was intended as indemnity, not for successive, constantly accruing damages recoverable as they may afterwards be suffered, but for all damages that the landowner may suffer from all the future consequences of the careful and prudent operation of a railroad (in the adjacent streets), it being the immediate damage done to the landowner’s estate by changing its permanent condition and impairing its present value. ’ ’
The same case says, that where no land is taken or appropriated, there should be but oiie proceeding for recovering damages “in which there should be a recovery for the entire damages, past, present and future”, and that “property consists, not of the physical thing of which it is predicated, but in the dominion that is rightfully and lawfully obtained over it, — the right to its use, enjoyment and disposition”. .
In Eberle’s case, (Ind.) 11 N. E. 467, it is said that the interest of the abutter to be paid for “is the right to have free access over it to his lot and buildings, substantially in the manner he would have enjoyed the right in case there had been no interference with the street”.
Many condemnation cases include compensation for *91injury arising from tbe fact that the defendant has made possible use impossible. All condemnation awards consider the future. It would be strange doctrine that, although the landowner intends at a convenient time to turn a strip of land next to his house into a pasture, yet if the railroad hurries along before this intention is carried out, it can insist that it has won its race with the owner’s right, and that there must not be taken into consideration that the proposed railroad would separate this potential pasture from the farmhouse and the barns.' It would all become a question of relative speed in action. Here is an owner of a lot planning a building thereon. Exits and entrances are yet being discussed with the architect. If the street be then vacated, his right to have exits as it may please him is, in part, lost. If this be so, the rule that his right as abutter is taken whenever vacation prevents his doing what he might, had there been •no vacation, is just a collection of words. He has left him the right to build openings giving on a closed street; and he will have no right to complain, because, forsooth, no exits existed at the time of the vacation. To' be sure, the ownership of his lot is made wholly or partially worthless because of the vacation, but he has no redress because the city authorities vacated too quickly. The essential of such takings, wholly or partly, is that the dominion of the owner is interfered with. It follows that interference with future use is a taking of property. If the street were not vacated, the right to change methods of ingress and egress would remain with the owner. The vacation takes that right. Where it is conceded that making useless an entrance from an existing street interferes with ownership rights, it follows that the same is true where it is made impossible to build a useful exit that could have been built had there been no vacation. The bottom right of ownership is to change the property at will according to judgment as to what is desired, so long as no injury to the rights of others is worked.
IV. If we have settled by decision that substantial inter*92ference with ingress and egress constitutes a taking of private property for public use, it follows, automatically, the judgment below’ should be affirmed; for the Constitution requires that, whenever there is such taking, compensation shall first be made.
Whether we have decided that such interference is such taking involves (1) what we have said upon the point and (2) whether what was said is decision or is dictum. The majority holds that it is dictum, and I am constrained to differ.
What have we said?
1. Speaking of interference with access, we held, in Cook v. City of Burlington, 30 Iowa 94, at 103, that because the right to have access remains undisturbed by interference with abutting streets, is an easement appendant to the lots, unlike any right of one lot owner in the lot of another, and is as much property as the lot itself, a court of equity will enjoin the diversion without compensation of such streets to uses other than giving access to such lots. (pp. 94, 101, 102.)
We say in Ridgway’s case, 139 Iowa 590, at 595:
“But with respect to the right which he has in the highway as a means of enjoying the free and convenient use of his abutting property, it is radically different, for this right is a special one. If this special right is of value — and it is of value if it increased the worth of his abutting premises— then it is property, no matter whether it be of great or small value. .• . . This is the doctrine of our later cases,'and this is the one followed in Heinrich v. City, 125 Mo. 424 (28 S. W. 626).”
We say in Long v. Wilson, 139 Iowa at 267, 269:
“His right to the street as a means of enjoying the free and convenient use of his property has a value quite as certainly as the property itself.”
The foregoing statements in the foregoing two cases are repeated in Borghart’s case, 326 Iowa 333, at 336.
The majority opinion admits that “to interfere with the *93free and consistent use of ingress and egress ... by vacation would be, in some instances, to destroy the value of the property itself ’ ’.
That for such interference compensation is due is summed up thus in the Ridgway case, 139 Iowa 590, 595.
“We need not quote further from these eases, or further analyze the rationale of the rule. Suffice it to say, that a street or alley may become so appurtenant to abutting property that it cannot be vacated without paying compensation to the owner of that property. ’ ’
In Sutton v. Mentzer, 154 Iowa 1, at 4 and 7, it is strongly intimated that, under the Ridgway case, cutting off access requires that payment be first made.
That such interference constitutes a taking is said in Elliott, Roads (1st Ed.), 662, 663, in a text approved in our Ridgway case as stating “the doctrine of our later cases”. This text is:
“ It is substantially agreed by the courts that the abutter has a private interest . . . and if he has this right it cannot be taken from him without compensation. ’ ’
The Borghart case, 126 Iowa 313, recognizes that such interference constitutes a taking, by the statement that just compensation must be made for the property “to the extent taken”.
McCann v. Clarke County, 149 Iowa 13, cites Elliott and the Borghart and Wilson cases, with approval, and says that this “is property which cannot be taken from him without just compensation”.
In Wilson’s case, Borghart’s case and Ridgiuay’s case, we have made our own the declaration of the Heinrich case, 125 Mo. 424, that such interference damages property, and constitutes such “deprivation of the use of property” as to amount, to that extent, to a destruction of its value.
The majority opinion confesses that, in our own cases, “the argument proceeds to the conclusion . . . that this easement is in itself property, for the taking of which he is *94entitled to damages, and that the taking of it is the taking of property in contemplation of the constitutional provision”.
In the aforesaid approved text in Elliott on Roads, it is said that so to interfere “is a taking of property within the constitutional inhibition”.-
Speaking of “impairing the incidental rights of the owner appurtenant to his lands located upon the street or highway”, it is said in Cincinnati & S. G. A. S. R. Co. v. Inc. Village of Cummingsville, 14 Ohio 523, that “it still took nearly twenty years to bring it to a clear and definite description; but, at length, in the case of Crawford v. Village of Delaware, 7 Ohio St. Rep. 459, it was placed upon the true ground as a right of property, protected by the Constitution, which could not be taken from the owner without compensation. . -. . This easement, appendant to the lots, unlike any right of one lot owner in the lot of another, is as much property as the lot itself.”
Of this Ohio decision, we say in Cook’s case, 30 Iowa 94, 102, that the same is “an opinion which, for its ability, and the wise and just solution of the questions presented, commends itself to the professional and judicial mind.”
Long v. Wilson, 119 Iowa 267, 273, says of this Ohio decision that the same “so clearly expresses our conclusion that it will bear repetition”, and repeats what I have quoted from the Ohio case.
2.
It is beyond gainsaying that we have said over and again that depriving the abutter in whole or in part of access to his property is a taking of private property for public use, which entitles him to compensation. The Constitution adds that, whenever there is such taking, this compensation must be first paid or secured. Since compensation has been neither paid nor secured, affirmance should result, unless what has thus been said does not amount to decision, or unless, though it does, we desire to overrule such decisions.
*95Whether what we have said should be treated as dictum depends upon the application of quite elementary rules, and upon whether the majority has soundly avoided these rules. Judgments settle between the parties whatsoever is decided by the judgment. In analogy, the decision of a court of last resort may operate as stare decisis upon all litigation within the jurisdiction. The test as to what a judgment decides is, according to Black on Judgments, Sec. 614, approved in Reynold v. Lyon County, 121 Iowa 733, 742, 743, not so much whether a particular proposition has been affirmed and denied in the pleading, but whether a fact has been fully and fairly investigated' and tried; and either whether such fact was actually determined, or it must be inferred from the judgment itself that it was. A fact is necessarily determined to exist or not to exist, if its existence or non-existence is required to support the judgment rendered. Freeman, Judgments (4th Ed.), Sec. 257, p. 466. If the facts involved in the second suit are so cardinal that without them the former decision cannot stand, they must now be taken as conclusively settled. Freeman on Judgments (4th Ed.), pp. 457, 458. The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps in the groundwork upon which it must have been founded. Freeman on Judgments (4th Ed.), See. 257, p. 465; Burlen v. Shannon, 99 Mass. 200, 203; Gilbert v. Thompson, 9 Cush. 349; Queen v. Inhabitants of the Twp. of Hartington, 4 El. & Bl. 780, 794. It is allowable to'reason back from a judgment to the basis on which it stands, upon the obvious principle that, where a conclusion is indisputable, and could have been drawn only from certain premises, the premises are equally conclusive and indisputable with the conclusion. Freeman, Judgments, Sec. 257, pp. 465, 466. A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposition which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very' matter directly decided. *96Trustees of School District No. 28 v. Stocker, 42 N. J. Law 115, 116, 117; Chouteau v. Gibson, 76 Mo. 38, at 47.
It is said in the Stocker case, 42 N. J. Law 116, 117:
“A decision that a court has no jurisdiction of an action against a school corporation must, in the state of the law, have reached this conclusion by holding that other decisions had settled that an action would not lie against a municipal corporation in the court of a justice; that) as to the question of jurisdiction, there was no distinction between such corporations and the quasi ones controlling schools, and that the same legal difficulty which stands in the way of such suit in such court will be found in the district court act. ’ ’
Most of our cases to which I have referred sustain allowance of damages on the ground that interference with access has taken property.
If a decision sustaining a judgment for damages is no more than a decision that damages are due, and all reasons assigned for allowing damages are obiter, then the majority is right. If, on the other hand, the cogent and relevant reasons assigned for sustaining such judgment amount to case law, then the sole question is whether the cases sustaining award did not, of necessity, determine that private property had been taken for public use. I cannot escape the conclusion that, when we say a judgment for damages shall stand, and assign as reason therefor that property has so been taken, the last is as much stare decisis as is the first. If suit were brought merely alleging that defendant had damaged plaintiffs, and there was a mere denial, and judgment for damages resulted upon the evidence, the only thing decided on the face of the record would be that plaintiffs were entitled to judgment for damages caused by defendant. But if the only claim in fact asserted was defendant had taken plaintiffs ’ horse without their consent, it would not be claimed that the judgment merely settled that damages were due plaintiffs, nor denied that the judgment settled that plaintiffs did and *97defendant did not own the horse. I am unable to differentiate between the supposed case and the one we have.
3.
No avoidance asserted in the ruling opinion seems to meet this. It seems impossible to sustain the claim of the majority, that, because the eases devote some argument to meet the argument that plaintiffs had no right distinct from those of the public, therefore, the whole basis for giving judgment for damages was that the abutter does have a right distinct from that of the public. Plaintiffs could not have judgment for damages merely because it was decided that they had a special interest not possessed by the general public. That merely allowed them to stay in court. Suppose one sued, alleging that the property of his wife had been converted. Surely, a holding that he was a party who could bring the suit would not prove the alleged conversion. No more material is it that plaintiffs had enough special right to sue. They could have judgment for damages only by proving that they had been damaged. Whatever is presented for consideration, and is considered, and is relevant, and a possible basis for judgment, cannot well be dictum. Where one party contends that the plaintiffs have no interest distinct from the public, and therefore are entitled to no damages, plaintiffs respond that they do have such interest, and that such interest is private property which has been taken from them for public use, and that they are entitled to damages, and there is a judgment for damages, I cannot conceive how it can be obiter to declare that what was done does constitute such taking.
' In Long v. Wilson, 119 Iowa 267, 269, plaintiff was bound by a judgment only if he had no interest in abutting property. We held that he was not bound by the judgment because he did have an interest. We said he was bound because he had an interest consisting of shutting off his appx’oach to his homestead, resulting in a taking of his prop*98erty. If that be obiter, so are the naked statements that plaintiff was bound, or that he had an interest. Did the court go outside the proper scope of decision because it did not confine itself to making the naked statement that plaintiff had an interest, but stated what that interest was? Was the last not a decision that, in every case where like acts occur, parties are deprived of an interest in property ?
The essential position of the majority is that, though it is law that interference with access constitutes a taking of property, within the meaning of the constitutional provision requiring that compensation be paid before the taking is effected, yet, if we uphold a judgment for damages which would not have been given unless plaintiffs had established that there was such interference, our affirmance fails to decide that such interference had occurred and that all must recognize the consequence attached by law to such interference.
4.
I am unable to see how the fact that damages may be recovered therefor is necessarily material, either upon the question of whether interference with access in fact constitutes a taking within the purview of the Constitution, or upon whether our decisions settle that such interference is such taking. The fact that damages may be got for interfering with access does not necessarily prove that there has been no taking. For, in the words of Garrett v. Lake Roland E. R. Co., (Md.) 29 Atl. 830, at 832, “Every taking involves an injury of some kind, though every injury does not include a taking.” An assertion that, because damages may be recovered, there has been no taking for which prepayment may be exacted, simply overlooks that a landowner who has an unquestioned right to demand prepayment may waive such right and sue for damages and recover them, and that such recovery does not change that there has been a taking for which the plaintiffs might have proceeded as the Consti*99tution permits. -The confusion arises from overlooking that the Constitution permits the exacting payment in advance, but does not compel it.
And so of adjudication. That depends. Should the judgment express, or it be provable, that the award is for an injury which does not constitute a taking of property, then the judgment would decide that there had been no taking. But if the basis of the claim for damages was that there had been an injury which did constitute such taking, judgment for damages would conclude the point that way.
The remark in Borghart’s case, 126 Iowa 313, 316, “as' the authority of the city to vacate is conceded, . . . her only recourse was an action for damages”, is not overlooked. On the face of it, and manifestly, this is the purest dictum. The plaintiff had brought a suit for damages; no claim was made that this was not the proper remedy. Whereupon, the court volunteered not only that it was the proper one, but the only one. This seems to be about all the foundation the majority opinion has for the statement: “The most that can be said for plaintiff’s claim is that his property is or may be damaged by the action of the city in vacating.” It is rather meaningless, too. For, as has been seen, that one is warranted in claiming that the vacation has damaged his property does not in the least negative the right to demand prepayment of damages in virtue of the Constitution.
5.
The form of the action is immaterial, if the cause of action is the same. Therefore, it does not matter that some of our cases were suits asking damages for the vacating, while the present suit is one enjoining the obstruction, of an alley. While I think it immaterial, let it be said in passing that Long v. Wilson, 119 Iowa, at 267, was an action asking an injunction against encroachment, and the abatement of the obstructions already placed. It has been held to be immaterial *100that the first suit is one for foreclosure, and the other, trespass to try title. Lee v. Kingsbury, 13- Texas 68. We have held that, though the first suit is one for the construction of a lease, and the second, for acts alleged to have been done in Adolation of the lease, construction in the first rules in the second. Madison v. Garfield Coal Co., 114 Iowa 56, 63, 64, It is well settled that it is not material that the claim or demand differs, or the cause of action, or the subject of the action, and held that the finding of ownership- in a search warrant proceeding-is binding in a suit to recover possession of the property (Montgomery v. Alden, 133 Iowa 675) ; that a denial of habeas corpus rules in a suit on the bond given by the petitioner; and that a judgment of a court of common law may be an estoppel in a court of admiralty.
As a rule of appellate practice, it is true that, if suit is brought for damages for a taking without insisting upon prepayment, the plaintiff may not complain that prepayment has not been ordered. But if we allow damages to stand because we find that what' was done constitutes a taking of private property for public use, this becomes a binding precedent that what was done is such a taking; a precedent which may be invoked in other suits, — though not suits, for damages, — in which other suits the plaintiff has not elected to, waive his constitutional rights. Suppose that one coupon of several attached to a bond is taken in such manner as that suit will lie thereon for the value of the coupon, or that replevin may be maintained. Suppose the facts as to the taking are undisputed, there is suit for the value, plaintiff has judgment, and we affirm. I. take it, this would be a finding that, upon such facts, plaintiff owned the coupon when it was taken, and that the taking was wrongful. Suppose, at the time; the one - coupon was taken, defendant took another, and thereafter plaintiff brings replevin. Would it be claimed that our first decision had not settled for the second suit that the taking was wrongful and that the second coupon, also, was owned by the plaintiff?
*1016.
The majority lays much stress upon the claim that ascertaining damages in advance would be very troublesome and expensive, because it may turn out that some of the abutters are not damaged at all, and that some suffer but small, .while others sustain larger, damages. It is said the mere act of vacation in itself may or may not cause damage to abutters; that the idea of damage may be negatived; and that the abutter often asks the vacation, and that it may sometimes be a direct benefit to him. I venture to suggest, in passing, that the question of possible benefits ought not to enter into this, if we admit that the Constitution rules; because that instrument provides, in terms, that no advantages resulting to the owner shall be taken into consideration. Assuming, for present purposes, that these difficulties are actual, I cannot grant them materiality. If difficulties in ascertaining damages and paying them in advance there be, these should have been urged upon the framers of our Constitution, rather than us. Whatever the difficulty may be, it ceased to be operative' as a sound argument when the Constitution was passed, with the provision that payment should be ascertained and made in advance.
The Kansas Constitution provides that no right of way shall be appropriated until full compensation, be first made- or secured by a deposit of money.' That does not differ essentially from the effect of our own Constitution. The Supreme Court of Kansas said, in Missouri, K. & T. R. Co. v. Ward, 10 Kans., at 356, that this provision ‘ ‘ cannot be overborne by any possible necessity. It prevails against constructions given by courts in other states. Until the money is paid or deposited the corporation gets no rights.”
We said, in Henry v. Dubuque & P. R. Co., 10 Iowa 540, at 543, what, it seems to me, has not been impaired by age, to wit:
“It would not be competent for the legislature to provide the means or method of ascertaining the landowner’s *102damages, to be paid at some time after the appropriation of the bind, or at any other time after the damages should be assessed. The just compensation referred to therein, must be made before, or secured to be made as soon as the jury shall determine the amount, and it would not be competent for the legislature to provide for the postponement of the same to a time after such assessment.”
In State ex rel. Smith v. Superior Court, (Wash.) 66 Pac., at 389, the Supreme Court of Washington says:
“We can foresee many difficulties, and perhaps much litigation, likely to ensue from the faithful enforcement of our constitutional requirement that damages be first paid. But we have no choice in the matter, and these difficulties, as well as many others, must be met and dealt with as they arise. ” .
This would seem to be a complete answer to the majority, and to a case like that of Vanderburgh’s, (Minn.) 108 N. W. 480, which will have attention presently.
I shall endeavor to show there is no uncertainty or difficulty about ascertaining the damages in advance, and, at least, none that would not, measurably at least, exist if the same thing were done later. However that may be, I am strongly persuaded that we have lío right to deny a remedy granted by the, Constitution, and to substitute another, even if it be conceded that to obey the Constitution will injure some who have disregarded it, and even though the remedy substituted be more certain and more convenient than the one the Constitution provides.
But is there any insuperable difficulty or uncertainty about ascertaining damage? It is held to be the difference between the value of the lot before and after the interference. Johnsen’s case, (R. I.) 29 Atl. 594. Also, the actual diminution in the market value of the premises for any use to which they may reasonably be put, which is occasioned by the interference. City of Denver v. Bayer, (Colo.) 2 Pac. 6.
Where a right of way went through a leasehold, it was *103conceded that this made it difficult to estimate damages, but we determined that it could be done by ascertaining the difference in value of the annual use of the property before and after. Renwick, S. & C. v. D. & N. W. R. Co., 49 Iowa 664. The measure will be the same as if there had been no highway to interfere with, and the fact that one exists, and is merely interfered with, becomes a mere circumstance tending to diminish the recovery. Grand Rapids & Indiana R. Co. v. Heisel, 38 Mich. 62.
So far from discriminating against ■ ascertainment and payment in advance, Koch v. Williamsport Water Co., 65 Pa. St. 288, 289, favors it, because “all the damages, retrospective as well as prospective, can thus be ascertained and settled in one proceeding, and future litigation, or the necessity of it, avoided.” The Heiss ease, 141 Ill. 35, takes the same view.
We have held unbrokenly that, where a right of way is taken by a railroad, the true measure of what is just compensation is to first ascertain the fair market value of the premises over which the proposed improvement is to pass, irrespective of such improvement, and like value of the same in the condition in which they will be immediately after the land for the improvement has been taken, irrespective of the benefit which will result from the improvement; and that the difference in value is the measure of compensation.
Assuming, for the sake of argument, that, if it be difficult or expensive to ascertain and pay damages in advance, it obviates the necessity of obeying the Constitution, I am yet unable to understand why there is any greater difficulty in determining damages for the purpose of prepayment than in ascertaining them after the taking has been completed. The majority holds that future changes or change in the use of the building cannot be considered. If that be so, the injury that the vacation will do is a completed .chapter when, the vacation is ordered. It is known just what alley passage will be cut off. It is settled what exists to be affected by the *104vacation. Why cannot a jury tell what the damage will be on the day it becomes certain that the alley is to be vacated as well as it can after the alley has actually been closed? But if the last were easier than the first, I repeat that I am unable to understand how it affects the situation. It may be conceded that what damage is caused by the construction of a railroad may be more definitely known after it is completed and running; and that its effect in actual operation upon the particular piece of land, and upon all other lands affected, can then be more definitely known than before the actual demonstration. But it would hardly be claimed that a proposed railroad could, on that account, complete construction before making or securing payment. We have no authority to meet difficulties in computation by amending the Constitution.-
V. If the question were open in this court, I would still be of opinion that we have not “chosen between conflicting decisions the better rule”, nor the one established by the weight of authority. See. 56, Lewis, Eminent Domain (2d Ed.) ; City of Indianapolis v. Kingsbury, 101 Ind. 200, at 211; Bayer’s case, (Colo.) 2 Pac. 6; Bigelow v. Ballerino, (Cal.) 44 Pac. 307; Pearsall v. Board of Supervisors, (Mich.) 42 N. W. 77; Kimball v. Homan, (Mich.) 42 N. W. 167; Lackland v. North Missouri R. Co., 31 Mo. 180; Heller v. Atchison, Topeka & S. F. R. Co., 28 Kans. 625; Abendroth v. New York El. R. Co., (N. Y.) 25 N. E. 496; Dorman v. City of Jacksonville, 13 Fla. 538, approved in Long v. Wilson, — all hold that the right or easement of ingress and egress is property.
Story v. New York El. R. Co., 90 N. Y. 122, 129; Lohr v. Metropolitan E. R. Co., (N. Y.) 10 N. E. 528; Griffin’s case, (La.) 6 So. 624; Pumpelly’s case, 13 Wall (U. S.) 166, 177; Cushman’s case, 34 Me. 247; Grand Bapids Booming Co. v. Jarvis, 30 Mich. 308; Mills’ Eminent Domain, Sec. 30, all hold that impairment of access, in whole or in part, constitutes a taking of such, property. In the Heller case and the Story case, injunction is allowed to prevent such taking prior *105to the payment of compensation. Excepting these two cases, I do not claim that the others decide that snch property cannot be taken before compensation is paid or secured. But they do establish two out of' three propositions essential to a decision that such property cannot be taken without prepayment of damages, to wit: that the right in question is property; and that such interference as the one at bar is the taking of that property. It may fairly be claimed that these' two propositions establish the third; that, if private property is taken for public use, the provisions of the Constitution add that prepayment of damages is necessary. But there is authority which establishes the third proposition, in terms. Crawford’s case, 7 Ohio St. 459, at 471, approved in our own eases, holds that, where there is such a taking by interfering with access, the spirit of the Constitution makes prepayment essential. Schuaf v. Cleveland, M. & S. E. Co., (Ohio) 64 N. E. 145, decides that the letter of the Constitution requires such prepayment. So does Horton v. Williams, (Mich.) 58 N. W. 369. Sanborn v. Belden, 51 Cal. at 266, 268, Davis v. San Lorenzo R. Co., 47 Cal. 517, say that the vacation may be reviewed on certiorari or restrained by injunction. So do California Pacific R. Co. v. Central Pacific R. Co., 47 Cal. 528; Bannon v. Rohmeiser, (Ky.) 13 S. W. 444; and Haynes v. Thomas, 7 Ind. 38 (the last two being approved in Long v. Wilson). Adams v. Chicago, B. & N. R. Co., (Minn.) 39 N. W. 629; and Lamm v. Chicago, St. P. M. & O. R. Co., in the same court, 47 N. W. 455; Theobold v. Louisville, N. O. & T. R. Co., (Miss.) 6 So. 230): at 231, approved in our own eases, hold such interference with access is a taking for public use within the meaning of the Constitution. The erection of a telegraph line is scarcely an actual taking, and is in effect a mere interference with the full use of the land; but it is held in Postal Telegraph. Cable Co. v. Southern R. Co., 89 Fed. 190, that a telegraph company may not enter into possession and construct, until the damages have been assessed and paid into court.
*1062.
Decisions found in other jurisdictions, that prepayment is not • required, are, in my opinion, either inapplicable or weak. Stetson’s case, 75 Ill. 74, Parker’s case, (Ill.) 34 N. E. 473, and perhaps Heiss’ case, (Ill.) 31 N. E. 138, hold that prepayment is not required because the abutter has no special interest. But they overlook that the Constitution of Illinois has no requirement that compensation be first paid or secured, a fact to which State ex rel. Smith v. Superior Court, (Wash.) 66 Pac. 385, calls attention. The Illinois Constitution of 1870 (Art. II, Sec. 13) is: “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the state, shall be ascertained by a jury, as shall be prescribed by law.” Lorie v. North Chicago City R. Co., (Ill.) 32 Fed. 270, decided in Illinois, merely follows the Stetson case. Clemens v. Conn. Mut. Life Ins. Co., (Mo.) 82 S. W. 1, at 3; Heinrich’s case, (Mo.) 28 S. W. 626, follow the Illinois cases, and overlook that the Missouri Constitution is like that of Illinois, and does not require prepayment.
In Maine, the law permits a reasonable time wherein to make compensation, and there is right to possession as soon as the improvement is determined upon and located. Davis v. Russell, 47 Me. 443, at 445.
3.
It seems to me that the fact that some states have added “damage or injury” to “taking” is not material. In some jurisdictions it was held that, without these words in the Constitution, prepayment was required when a damage constituted a taking. In others, the absence of such words was thought controlling, and thereupon the words were added in those jurisdictions. But in what way did this change in Constitutions change the conflict between these decisions, or add anything to the number or weight on either side of the con*107fliet ? The courts which held such an interference to be a taking adhere to the holding. The courts which required the change, of course, respected it after it was made. They still held that such interference was not a taking, but also held that it was covered by the addition of the words ‘ ‘ damaged or injured”. One set of decision makers remained unaffected by a change which, in their view, changed nothing. The other set merely became more thoroughly convinced than ever that interference with access was not a taking.
Ohio and Michigan require prepayment. I am quite sure their Constitutions do not have the words “damaged or injured”. So that the statement by the majority that prepayment is not demanded in any decisions made under Constitutions lacking such words is erroneous in fact. But how is it material, unless the courts of states which have “damaged” in the Constitution hold that damage demands prepayment because the Constitution contains the w,ord ? • But where such courts order prepayment because they find that the like of what was done in this case constitutes a taking, it constitutes an authority for that conclusion, even though it might have been put on the ground that, under the wording of their organic act, any damage was enough, though it fell short of being a taking.
4.
McGee’s Appeal, (Pa.) 8 Atl. 237; Wetherill v. Pennsylvania R. Co., (Pa.) 45 Atl. 658; Morris v. City of Philadelphia, (Pa.) 49 Atl. 70; McMahon v. St. Louis, A. & T. R. Co., (La.) 6 So. 640; Macy v. City of Indianapolis, 17 Ind. 267; City of Lafayette v. Bush, 19 Ind. 326; City of Delphi v. Evans, 36 Ind. 90; Stetson’s case, 75 Ill. 74; Parker’s case, (Ill.) 34 N. E. 473; and Richardson v. Vermont Cent. R. Co., 25 Vt. 465, hold that what was done in this ease does not require prepayment of damages. "While it runs counter to G., C. & S. F. R. Co. v. Fuller, 63 Texas 467, 469, Rische v. Texas Transp. Co., (Tex.) 66 S. W. 324, affirms the same, *108and so does Heiss’ case, (Ill.) 31 N. E. 138. It holds, also, that no damages are recoverable where the impairment was on one side of the center line of the street and the lot alleged to have been injured was on the other side, because the abutter had an interest only to the center line. In this it is contradicted by Lackland’s case, 31 Mo. 180 (approved in Long v. Wilson, 119 Iowa 267), to the effect that it is immaterial in such case whether the owner of the lots owns to the middle of the street. Each of these rests upon the ground that the abutting owner has no interest in the adjoining way or in its being kept open, distinct from the general public, and is, therefore, not only without the right to have damages prepaid, but to recover damages., But we hold exactly the reverse, and the opinion asserts what we do. Surely, we should attach no weight to decisions which rest wholly upon what we hold is an utterly unsound basis.
5.
Our Constitution commands that payment shall be made or security given before the taking. It is no answer that the taker is one financially able to respond to a judgment for damages.
In Garrett v. Lake Roland El. R. Co., (Md.) 29 Atl. 830, 831, prepayment is held not to be required, because the ordinance involved “makes ample provision for the prompt and effective enforcement of such judgment as a court of law, in an appropriate proceeding, may pronounce”. Possibly, the Constitution of Maryland provides for security, and that so the case holds merely that security has been giveii which meets the Constitution. Otherwise, the case overlooks that, if the Constitution requires prepayment, both reason and many authorities hold that there can be no substitute for prepayment. Martin v. Tyler, (N. D.) 60 N. W. 392, and Sanborn v. Belden, 51 Cal. 266, at 268, declare that prepayment means prepayment, and that a constitutional provision requiring such payment prohibits substitutes for prepayment.
*109In the Heiss case, 141 Ill. 35, at 57, which is much relied ■ on by the majority, it is said: ■
“It has been uniformly held in this country, that the compensation need not be paid before the taking, — it is sufficient that provision be made for compensation afterwards, provided the payment'be made certain. So enactments providing for taking possession of property sought to be condemned for public use, upon giving bond, etc., have been held valid. The rule is stated by Chancellor Walworth (18 Wend. 9) that the compensation must be either ascertained and paid before the property is appropriated, or an. appropriate remedy must be provided, and upon an adequate fund, that it may be reached by the owner through the medium of the courts of justice. And in Gardner v. Village of Newberg, 2 Johnson’s Chancery, 162, Chancellor Kent-held that if, in any case, the government proceeded without taking these preliminary steps, their agents and officers may and should be restrained by injunction.”
And see Henry v. Dubuque & P. R. Co., 10 Iowa 540, 543.
In Covington S. R. T. R. Co. v. Piel, (Ky.) 8 S. W. 449, 451, it is said:
“It is manifest that a mere security in the bond of a corporation cannot be regarded as just compensation previously made the owner, within the spirit and meaning of the bill of rights. That the citizen would be more likely to receive compensation from the state out of an abundant treasury, and by reason of its power to enforce payment by exactions from its citizens in the form of taxation, than from a private corporation owning its corporate property, or the individual security given by it, will be readily conceded. But in what manner - this protects the citizen who has been deprived of his property in his constitutional rights it -is difficult to comprehend. The security may be more ample in-the one case than in the other, and still his right of property has been destroyed in its appropriation to a public use without just compensation previously made; and all that is left him, *110whether due by the municipality, county or corporation, is the right, if a voluntary payment is not made at the end of the litigation, to take coercive measures for the recovery of the value of his property, to which he was clearly entitled from the municipality or the private corporation before'either could use it for public purposes. Viewed in any aspect of the case, whether taken by the sovereign, or by the corporation under sovereign authority, it is .a. destruction of the constitutional guaranty for the protection of private property to appropriate it, without the consent of the owner, to a public use, without first making compensation to him in money for the value of the property of which he has been deprived.”
The case cites Cooley on Constitutional Limitations, Sec. 562, where it is said:
“It is not competent to deprive the citizen of his property and turn him over to an action at law against a corporation, which may or may not prove responsible and to a judgment of uncertain efficacy.”
Sutton’s case, 154 Iowa 1, 7, seems to contemplate an actual appropriation of money.' It says:
“As there has been no appropriation by the city to a private use, it is not to be presumed that such compensation has been made. ’ ’
In Omaha Horse R. Co. v. Cable Tram-Way Co., (Neb.) 32 Fed., at 727 and 728, dealing with a paralleling of one transportation company having exclusive franchise, the question is avoided by holding that the prayer for injunction and other equitable relief was broad enough to allow the assessment of damages in the suit to. enjoin, which, if carried out, would, of course, work a prepayment.
The Clemens case, (Mo.) 82 S. W., at 3, proceeds upon the remarkable théory that no injunction can be allowed because “the very fact that he had an ample remedy at law deprives him of the remedy by injunction”. This is a polite way of saying that, if the Constitution requires prepayment, a taking without prepayment cannot be stopped because the
*111damage can be collected by suit at law subsequent to the taking. McMahon’s ease, (La.) 6 So. 640, proceeds along these same lines, to wit, that an injunction will not lie because it does not appear that the injury was irreparable, and because there was an adequate remedy at law.
Vanderburgh’s ease, (Minn.) 108 N. W. 480, is a good composite type, embodying more of the errors of the ruling opinion than any other case which that opinion specially approves. It admits that impairment of access is a taking of private property for public use, and that the Minnesota Constitution requires that, on such taking, the damages shall be first paid or secured. It holds that there need not be such prepayment, and also holds that damages may be recovered. It does all this with the apology that to allow damages without .requiring their prepayment is an “exception to the general rule, though perhaps not logical”. It defends its confessed disregard of the Constitution with the statement that ascertaining damages after the injury is complete can be done more certainly than before completion, and, in effect, that the Constitution should be disregarded because it will be more convenient to disobey than to obey it; that if it be obeyed, others who have in the past disregarded it may find themselves with a clouded title; and that a holding consistent with the Constitution might, therefore, lead to much litigation. The highest court in the land is not above the laws of logic, and is not entitled to approval for violating the fundamental law.
I leave it to others to treat a decision as being persuasive authority wherein it is confessed that it is treating white as black, and tramping logic and fundamental law under foot for the sake of fancied convenience.
“A single decision, made without notice of the statute, • and which in fact sets the statute aside, cannot be invoked as authority.” Duff v. Fisher, 15 Cal. 375.
The Supreme Court will not follow the line marked out by a single precedent case, placing its decision on the rule of *112stare decisis alone, without regard to the ground on which such ease was adjudicated. State v. Williams, 13 S. C. 546.
I would affirm.