Boskovich v. Midvale City Corp.

HENRIOD, Justice.

Appeal from a no cause of action judgment. Plaintiffs sought an injunction and damages against defendants, where a portion of a street and alley was closed by city ordinance. The judgment is reversed and remanded, with costs on appeal to plaintiffs.

Plaintiffs own lots in Eastvale Addition, a platted, recorded and accepted subdivision in Midvale. The street and alley in question are included therein, and the shaded area of the subjoined sketch represents the closed portion.

*447Without notice to, application by, or hearing of any kind afforded any property owner, Midvale’s council enacted an ordinance vacating the shaded area, which had been used for vehicular travel. The school board owned property abutting on both sides of the shaded area, and it took possession thereof as owner to the middle of a vacated street, fenced it off and made it a part of the school yard, creat-

The city justifies its action under general statutory authority granting cities power to create and vacate streets and alleys by ordinance.1 Plaintiffs challenge the preceding a cul-de-sac as to plaintiffs’ property on Jordan Avenue and as to the property of Cox and Draper on the alley, ure pursued as being in excess of that authority, and urge that where a platted subdivision is involved, the authority claimed by the city is interdicted and preempted by special statutes,2 requiring petition by all owners directed to the proper public authority for approval. We believe this latter statute normally should be followed, but recognize the fact that a city, by ordinance, might vacate or abandon streets even in a subdivision, if public exigency requires and if a procedure is followed satisfying statutory requirements and requirements of due process, including reasonable notice, a fair hearing and consideration of any substantial rights involved. Plaintiffs complain that no such procedure was followed here, and we are constrained to agree.

There are a number of ways that streets may be opened or closed.3 If by ordinance, there must be something more than its mere enactment. We believe and hold that the procedure followed by Midvale in this case, sans notice, petition or hearing, was an unquestioned de*448parture from, the elementary principle that property cannot be taken without due process of law and without just compensation.4

Furthermore, even if the city had satisfied the requirements of due process by giving reasonable notice and conducting a fair hearing, still it could have vacated no more than the public easement or right which the city had in the shaded area,5 which would in turn have the effect of relieving it from further responsibility for maintenance and control.6 The private easement which' Mr. B, plaintiff herein had, would have persisted.

This case involves a duly platted subdivision containing streets and alleys and is thus distinguishable from the authority cited by defendants.7 We have held, in a case reason in this case, where it appears obvious that the school children need the space, and the damage to Mr. B does not appear to be very great, why the parties by stipulation and amendment of their pleadings to conform with principles here announced, and after a hearing, cannot arrive at a fair adjustment in the interest of these children.

WADE, McDONOUGH and CROCKETT, JJ., concur.

Title 15-8-8, U. C. A. 1943: “They may lay out, establish, open * * * streets, alleys * * * and may vacate the same or parts thereof, by ordinance.”

Title 78-5-6, 7 and 8, U. C. A. 1943.

Hall v. North Ogden, 109 Utah 304, 166 P. 2d 221; Wall v. Salt Lake City, 50 Utah 593, 168 P. 766; Sowadzki v. Salt Lake County, 36 Utah 127, 104 P. 111; Title 78-5, supra; Title 15-8-8, supra.

Utah Const., Art. I., Secs. 7 and 22; U. S. Const., V and XIV Amendments; Tuttle v. Sowadzki, 41 Utah 501, 126 P. 959.

Tuttle v. Sowadzki, supra; 150 A. L. R. 652, 658.

150 A. L. R. 644.

Robinett v. Price, 74 Utah 512, 280 P. 736.