Gaynor, J.
On the 20th day of May, 1912, the defendant city passed the following ordinance:
“Be It Ordained by the City Council of the City of Des Moines:
“Sec. 1. That the north and south alley between West Second Street and the Des Moines River and bounded on the north by Grand Avenue and on the south by Locust Street, said alley lying immediately east of the Coliseum, be and the same is hereby vacated.
“Sec. 2. That said alley so vacated and described in Sec. 1 of this ordinance be and the same is hereby placed under the supervision of .the superintendent of parks and public property, the same to be utilized for park purposes.
“Sec. 3. All ordinances or parts of ordinances in conflict herewith are hereby repealed.
[57]*57“Sec. 4. This ordinance shall be in full force and affect from and after its passage and publication as provided by law. ’ ’
It appears that the plaintiffs are the owners of certain lots, occupied by the Coliseum referred to in said ordinance. This Coliseum building extends from Locust Street to Grand Avenue, immediately west and abutting upon the alley referred to. It is built of brick, has windows on the east side, facing the alley, but has no means of exit or entrance to or from the alley. The entrance is from Locust Street on the south, and from Grand Avenue on the north. On the north end of the Coliseum building, facing on Grand Avenue, there are two doors, or openings, one large enough to admit a large wagon or anything of that kind, and the other for the admission of people. On the south end of this building, fronting on Locust Street, there are three or four doors. All the exits and entrances are on the north and south sides of the building, facing on Locust Street and Grand Avenue. Grand Avenue is sixty-six feet wide between lot lines, and the roadway is forty-two feet between the curb. The Coliseum is now so arranged that all people who enter or leave the building must do so either on Locust Street or Grand Avenue. There is no exit or entrance on either the east or west side of the building. Locust Street, running immediately south of the Coliseum, is one of the main public streets of the city and is a paved street, with sidewalks both on the north and south sides. Grand Avenue is also a public street, paved and with sidewalks. The property immediately east of the Coliseum and this alley is owned by the city, and is used as a public park and fronts on the river. It has been graded and sodded, and a small structure erected called a pergola. This pergola is about ten feet high, and its west line is about six feet east of the Coliseum and about midway between Locust Street and Grand Avenue, and is thirty feet in radius. The alley was about sixteen feet wide. Prior to the -.time it was vacated, it was rough, full of rubbish, uneven, and unsatisfactory to [58]*58drive on, and was not used very much. The land lying between the river and the Coliseum and immediately east of this alley is laid out as a place for the gathering of people in the evening, and as an adornment to the river front. The pergola is made of wood and stucco, with a concrete base, and has electric lights, and the park is provided with seats as a resting place for tired people, and is devoted exclusively to park purposes. No other buildings than the pergola are erected on this site. The city has expended considerable money in beautifying this place and in constructing the pergola. The effect of the vacation of this alley, the erection of this pergola, and the devotion of this strip between the Coliseum and the river to park purposes, is to prevent the use of this alley, by teams on the east side of the Coliseum. These are all the facts necessary to a proper determination of the controversy here.
This action is brought to declare void the ordinance above set out, and to enjoin the obstruction of the alley by the defendant. The cause was tried to the court and a decree entered for the plaintiffs, as prayed. From this, defendant appeals.
It is conceded that the city did not, at, prior, or subsequent to the passage of the ordinance vacating the alley in controversy, take any steps to ascertain the damages, if any, to the lots abutting on this alley, and did not pay or secure to the owners of such lots the damage, if any, they sustained by reason of the vacation of the alley. This last concession provokes the whole controversy. The plaintiffs contend that the owner of property abutting on the street or an alley has an interest in the street, distinct from his interest as a citizen, and this interest is private property which is protected by Art. 1, Sec. 18, of the Constitution, which reads as follows:
“Private property shall not be taken for public use without just compensation first being made, or secured to be made, to the owner thereof, as soon as the damages shall be assessed by a jury”, etc.
It is claimed that this interest which an abutting property [59]*59owner lias in a street or alley cannot be taken without first ascertaining and paying to him the damages, as provided in the Constitution; and it is claimed that, under this provision of the Constitution, where a street or alley is vacated, the ascertainment and payment of the damages must precede the act of vacation; and that any ordinance which undertakes to vacate a street or alley, without making provision for the ascertainment and payment of the damages, is void, as in contravention of the provisions- of this article of the Constitution.
It is elementary that, under this provision of the Constitution, private property cannot be taken for public use until just compensation has been made or secured. The very first step in the taking of private property for public use is the ascertainment and payment of the damages which result to the property owner from the taking. This damage must be ascertained, paid or secured, before there can be a lawful taking of private property- for public use. The question then is, Does the vacation of an alley constitute such a taking of private property of abutting owners that the. act of vacation becomes unlawful unless the damages which may accrue from such vacation have been first ascertained, paid, or secured? The contention of the plaintiffs is that the city council had no power or jurisdiction to vacate until it had complied with this constitutional requirement.
1. Municipal corporations: streets and alleys: plenary power to vacate. It is proper first to determine what the powers of a city are over its public streets and alleys, what ri§ht it has in the same, and what power it has to establish or vacate. Sec. 751 of the Code provides:
Cities and towns shall have power to establish, lay off, open, widen, straighten, narrow, vacate, extend, improve and repair streets, highways, avenues, alleys, public grounds”, etc.
In McLachlan v. Town of Gray, 105 Iowa 259, this court said: “We understand the General Assembly has plenary power over streets and may vacate or discontinue the public [60]*60easement in them, and may invest municipal corporations with this authority.” This was an action to restrain the vacation of a highway within the limits of the incorporated town of Gray.
Spitzer v. Runyan, 113 Iowa 619, is an action in which the plaintiff sued out a writ of certiorari to test the validity of an ordinance passed by the city council, whereby certain streets and alleys were vacated, and the land comprised therein granted to the Burlington, C. R. & N. R. Co. In this case, the court recognized the right of the city, not only to vacate the streets and alleys, but to devote them thereafter to other than public purposes. See also, 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;, Walker v. City of Des Moines, 161 Iowa 215.
Therefore, we find not only that the statute confers, but judicial authority recognizes, the right of a city or town, through its proper council, to vacate or narrow a public street or alley, and, having done so, it is invested with authority to dispose of the land covered by the street or alley so vacated.
2‘ Municipal corporation: streets and alleys: vacation: nondestrusction of ingress or egress: damnum absque injuriq. We come next to inquire what is the right of the abutting property owner in the street or alley, upon which he can predicate a legal right to have it maintained in statu quo. The fee of the street is in the city. The pecu^ar right of the abutting property owner is limited to tiie use of the street in connection with his property. Of course, he has a common right with the public to the use of the street. As an abutting landowner, he may have a distinct and different right. The plaintiffs, as abutting property owners, have a right to a means of egress and ingress. The street or alley having been established by proper authority, the right through that instrumentality of ingress and egress is created. This is a substantial right, and, at certain points abutting their property, of great value; at [61]*61other points, of practically no value. To interfere with the free and convenient use of ingress and egress, -to shut off access to their property entirely by the vacation of streets or alleys, would be, in some instances, to destroy the value of the property itself, — at least until such time as aerial navigation has been perfected. There is no question, under the rule laid down in this state, and as the law now stands, that the vacation of a public street or alley may be a substantial injury to the owner of abutting property, by the destruction of his right to the larger and fuller enjoyment of his property, resting in the existence of the street or alley.
In Barr v. City of Oskaloosa, 45 Iowa 275, it was held that the abutting property owner could not recover damages from a town or city, sustained by reason of the vacation of a street or alley. This decision -stood as the law of this state until the ease of Long v. Wilson, 119 Iowa 267, in which it was said:
“It may not be of importance to the general public whether a particular street is vacated or not. It is important to the individual owner of abutting property that he shall be able to get to and from his residence or business, and that the public shall have the means of getting there for social or business purposes. In such a case, access to thoroughfares connecting his property with other parts of the town or city has a value peculiar to him, apart from that shared in by-citizens generally, and 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. If this special right is of value, — and it is of value if it increases the worth of his abutting premises, — then it is property, regardless of the extent of such value”, — citing authority.
This case quotes with approval from Heinrich v. City of St. Louis, 125 Mo. 424, 427, as follows:
“ ‘There is no doubt but a property owner has an easement in a street upon which his property abuts, which is special to him and should be protected.’ While the owner of [62]*62a lot abutting on a public street has the same right to the use of a street that rests in the public, he at the same time has other rights which are special and peculiar to him, and the right of ingress and egress is one of them. This right of access is appurtenant to his lot, and is private property. To destroy that right is to damage his property, and when this is done for the public good, the public must make just compensation. ’ ’
In that ease, it is said that, conceding the power of the legislature, acting through municipalities, to vacate streets, and conceding that this power has been fully recognized by this court, yet it does not follow that the power may be exercised without compensating abutting property owners for the damages occasioned thereby.
Borghart v. City of Cedar Rapids, 126 Iowa 313, was an action to recover damages for the vacation of a public square, the effect of which was to obstruct all access by the way of the square to plaintiff’s lots. The court in that ease said:
“That this square was intended to be used in part, at least, as a street approach is manifest from the fact that some of the lots were platted facing it, and with no other means of access. ... In so far as the street . . . was necessary to the free and convenient way for travel to and from the lot, her right to its use for that purpose was appurtenant to her premises, and essential to their enjoyment. The abutter has a right, in common with the community, to use the street from end to end for the purpose of passage; but, in addition to this common right, he has an individual property right, appendant to his premises in that part of the street which is necessary to free and convenient egress and ingress to his property. That this latter right is private and personal and unshared by the community, and cannot be taken away without answering in damages, is held by substantially all the authorities,”— citing authorities.
Further, in speaking of the act of vacation, the court said:
“As such destruction (that is, the vacation of the street) [63]*63is presumed to have been for the public good, the public musí, make just compensation for the property to the extent taken As the authority of a city to vacate is conceded . . . her only recourse was an action for damages.”
McCann v. Clarke County, 149 Iowa 13, involved the right to recover damages for the vacation of a public highway. It cites with approval Borghart v. Cedar Rapids, supra, and Long v. Wilson, supra.
Ridgway v. City of Osceola, 139 Iowa 590, relied on by the plaintiffs, was an action to recover damages claimed to have been caused by the vacation of a street or alley abutting on plaintiff’s property. In that case, it was held that, in so far as the damages are not different from those of the general public, no damages may be recovered; that if the owner still, after the vacation of the street, had free access to the property and to the improvements thereon, and his means of ingress and egress are not substantially interfered with, no damages can be recovered.
It is the holding of this court, since the overruling of Barr v. City of Oskaloosa, supra, that an abutting property owner, whose right of ingress and egress has been cut off or substantially interfered with by the vacation of a public street or alley, has a right of action against the city for any damages which he may sustain by such vacation.
It is argued that the city, by accepting the street, assumed an obligation to keep it open and to afford to the dedicator, or his grantees, access to the property abutting upon the street; that this duty to keep it open is clearly implied from the dedication and acceptance; that although, by virtue of the statute, the city has power to vacate the street, yet it cannot do so without compensating the abutting property owner for the damages which may result to him from such vacation; that the right to ingress and egress is a vested right in the property owner and is of value, especially if the value of his property is increased by the existence of the street and decreased by its vacation; that if the existence of the street [64]*64increased the worth of his property, then, this right to have it open is property in itself; and that the vacation of the street, which takes away this right of ingress and egress, is, in itself, the taking of property within the constitutional inhibition, and cannot be taken away without compensation. It was, however, said in Ridgway v. City of Osceola, supra, that, in so far as the damages are not different from those of the general public, no damages may be recovered from the city on account of the vacation of the street; that if the owner still has free access to his property and to the improvements thereon, and his means of ingress and egress are not substantially interfered with, no damages may be recovered.
In this Ridgway case, it was strongly contended that the rule in Barr’s case should prevail; that no damages should be allowed even though the vacation did have the effect of preventing egress from and ingress to the property; that no damages could be allowed for the vacation of the public street. What was said in the Ridgway case was in answer to the contention that the rule in Barr’s case should prevail. But, whatever the 'purpose may have been, it still remains established as the law of this state that an abutting property owner, whose right of egress and ingress has been substantially interfered with by the vacation of a public street or alley, has the right of action for damages which may result to him personally by such vacation, and it does not matter whether you call it an easement in the street, a vested right to the use of the street, or a claim for damages. This court is committed to the doctrine that he is entitled to recover if the free access • to his property and the improvements thereon, through the street and by means of the street, has been substantially interfered with. The court .summed up its conclusion in the Ridgway case, supra, by saying:
“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. ’ ’
This brings us to the real matter in controversy in this [65]*65case. It is clear that all the effect that the vacation of the alley in the instant case could have upon plaintiffs’ property rights is to interfere with the ingress to and egress from their property, from and to this alley. At the present time, there are no means provided for ingress to or egress from this alley, nor was any such provision made, or attempted to be made, at the time this ordinance was passed. The building extends from Locust Street to Grand Avenue. It is so constructed that all the entrances to the property and exits from the property are upon Grand Avenue or Locust Street, on the north and south ends of this building. The vacation of this alley does not, as this record discloses, substantially interfere with the full enjoyment of all means of access to this property which have been provided or were in existence at the time the ordinance was passed.
We might hold, under the authorities heretofore referred to, that, by the vacation of this alley, there was no substantial invasion of any right of the plaintiffs upon which they could predicate any right for damages. Their egress and ingress have not been substantially interfered with. The Coliseum was constructed as a gathering place for people. The main floor is so arranged that there are booths along the east and west sides. The center is open. Above these booths on the east and west sides are galleries with seats. On the south end, there are also galleries with seats. All exits from these galleries lead to the south, or to Locust - Street. There are no doors or entrances or exits on the east side of the building. The - Coliseum is used in a general way for convention purposes and for concerts. There are many small windows on the east side of the building. The lowest window is about ten feet above the ground. The building is about forty or fifty feet in height, and occupies the entire length of the alley on the east from Locust to Grand Avenue.
We might stop here on the holding that the vacation of this alley has not affected any substantial right of the plaintiffs of exit from or ingress to their property; that whatever [66]*66right they have been deprived of by the vacation of the alley is a right to use the alley in common with the general public. Proper exits and entrances have been left unobstructed. The exits and entrances provided have not been interfered with. The full enjoyment of the use of the property has not been obstructed. Ample provision has been made for exits and entrances'on the north and south, which have not been interfered with. There is no substantial evidence of any damages sustained by the plaintiffs. The record does not disclose the interference with any substantial right of exit and entrance. The mere expression of the opinion that the property has been damaged is not substantial proof against the physical fact that no damage has resulted.
3. Municipal corporations : streets and alleys : vacation: power not conditioned on prior payment of damages: constitutional law. We are not disposed, however, to stop the consideration of' the case at this point. Concede, for the purpose of this case, that future conditions may arise in which it may be necessary for the plaintiffs, in the proper enjoyment of their property, to have exits and entrances on the east; that such exits and entrances can be provided in the building as it now stands; concede that the property may not always be used for the purpose to which it is now put, and that the vacation of this alley may interfere with the use of the property, when put to a different purpose .from that to which it is now devoted; yet we cannot concur in plaintiffs’ contention that the plaintiffs, are now damaged, and that this damage must be first ascertained and paid before the alley can lawfully be vacated.
If, by the vacation of this alley, plaintiffs have sustained actual, measurable damages, the question still arises whether these damages are.of such a character that,-under the provision of the Constitution heretofore recited, -they must first be ascertained and paid, or secured, before the alley-is actually vacated. That the plaintiffs might be entitled to damages may be conceded, but is it such damage as must be first paid, or secured, before the alley is vacated? On this [67]*67question, courts are not agreed, and the disagreement arises largely, if not entirely, from the different wording of this constitutional provision. Some of the states have provided that private property shall not be taken or damaged for public use without just compensation’s being first made, or secured to be made. Our Constitution does not provide that private property shall not be damaged- for public use, without compensation’s first being made. The constitutions of these several states originally provided as ours provides. They were subsequently amended by adding the word “damaged” to the word “taken”.
It must be conceded that no physical, tangible property was taken by the vacation of this street. The most that can be said for the plaintiffs’ claim is that plaintiffs’ property is or may be damaged by the action of the city in vacating the street. But concede, for the sake of argument, that plaintiffs’ property did suffer some damage from the exercise of the power granted to the city to vacate this alley, yet does the constitutional provision above referred to, and the inhibition therein contained, cover the question of damages to property ? Many of the states where it is held that the damages resulting from the vacation of a street must be first ascertained and paid or secured, are states in which the Constitution provides, as a condition precedent to the vacation, that the damages must first be ascertained and paid.
As said in Louden v. Starr, 171 Iowa 528:
“There is a difference between the vacation of a public street and damages incident thereto, and the taking of private property for use as a public street. In the taking of private property for a street, the injury is direct, immediate, and ascertainable at once, and the constitutional provision applies, and compensation must be first made. But in the vacation of a street, the damages are not direct, immediate, or at once ascertainable. In fact, the vacation of a street may be a direct benefit to abutting property owners. The damages, in such case, are merely consequential, and, though recoverable [68]*68in an action against the city, it is not necessary that they be first ascertained and paid.”
We think that in none of the states, where the Constitution is silent as to damages, has it been required that compensation first be made before the damages are inflicted.
In the case at bar, the damages, if any, are such as may result from a change in the use of the property, and cannot be ascertained or determined with any degree of accuracy at this time, and as a rule, where the constitution does not provide for having the damages ascertained and paid before the street is vacated, the party suffering damages, if any, is left to his legal remedy to recover his damages.
Parker v. Catholic Bishop of Chicago, (Ill.) 34 N. E. 473, was an action in which the plaintiff sought to enjoin the city of Chicago, and to have declared void an ordinance vacating a public street. It was there contended that it was a condition precedent to the vacation of the street that the damages to complainant’s lot be first ascertained and paid. The court said: “The municipality holds the streets and alleys of the city in trust for the general public, and by the statute is given power to vacate the same whenever the public interest or convenience, in the exercise of a reasonable discretion, shall seem to such authority to require it.” It was further held in that case that it was immaterial to the exercise of this right whether the streets were owned in fee by the city, or whether the rights reverted to adjoining property owners upon its vacation, and it was said: [69]*69compensation, to be ascertained by a jury in the mode prescribed by law. Const., Art. 2, Sec. 13. It seems to be well settled in this state that, where no part of the land or property of the complaining owner is physically taken for or in making the proposed public improvement, and the damages claimed to result are, therefore, consequential only, this provision of the Constitution does not require the ascertainment and payment of such damages as a condition precedent to the exercise of the right or power. Stetson v. Chicago & E. R. Co., 75 Ill. 74, 76; Patterson v. Chicago, D. & V. R. Co., 75 Ill. 588; Peoria & R. I. R. Co. v. Schertz, 84 Ill. 135; Penn Mut. L. Ins. Co. v. Heiss, 141 Ill. 35. It seems to be .sufficient to answer the constitutional requirement that a remedy is provided for the recovery of such damages; and the same construction was given in the Stetson case, supra, to the word ‘damaged’, as employed in the act to provide for the exercise of eminent domain. It was there held, and it has been repeatedly since followed, that the damages there referred- to were direct and physical, resulting from a taking of a portion of the land, and that where no portion of the land was taken, the damages suffered are consequential, and that condemnation proceedings were not required to be instituted to ascertain the same.
[68]*68‘ ‘ A question of more difficulty arises upon the second eontentio.n made. It is insisted ... in the bill that the vacation of the alley deprived the complainant of a valuable property right, which she would otherwise enjoy as appurtenant to her lots, and that if said alley was vacated for- a public use or purpose, it damaged her property, and she was therefore entitled to compensation. While private property cannot be taken by public authority for private use, it may be taken or damaged for a public use upon payment of just
[69]*69‘ ‘ It is, however, insisted that, although no portion of complainant’s property was physically taken, by See. 1, Ch. 145, of the Revised Statutes, the city council were required to ascertain and pay to complainant the damages to her property, resulting from the vacation of the alley, and, not having done so, the ordinance is void. That section is as follows: ‘That no city council of any city . . . whether incorporated by special act or under any general law, shall have, power to vacate or close any street or alley, or any portion of the same, except upon a three-fourths majority of all the aldermen of the city . . . And when property is damaged by the vacation or closing of any street or alley, the same shall be ascertained and paid as provided by law.’
[70]*70‘ ‘ It is urged that the latter clause requires, as a condition to the vacation or closing of a street or alley, that damages be ascertained and paid. It cannot be, however, that the legislature intended that in all cases there should be a judicial determination'as to whether all the property lying adjacent to, or .that might in a remote degree be affected by the closing of the street or alley, was damaged or not. It is only ‘when property is damaged by the vacation or closing of any street or alley’ that the same is to be ascertained^ as provided by law. It is apparent, we think, that discretion is vested in the municipal authorities to determine in the first instance, whether property will or will not be damaged by the proposed vacation or closing of the street or alley. . . . The presumption is that the city council, being clothed with governmental functions, will discharge its duty as required by law, and that, where property is damaged by the proposed vacation or closing of any of the streets or alleys of the city, they will ascertain and pay the damages as required; and this presumption will obtain until the property owner has, in an appropriate action, established his right to damages, and the property owner will, where no proceedings have been instituted by the municipality to ascertain his damages, be remitted to his remedy at law for recovery of the same. The determination of the city authorities cannot, however, be conclusive upon the property owner. He will be entitled to his day in court to recover, in an appropriate action at law, all such special damages to his property ... as will be occasioned by the proposed vacation.”
In Vanderburgh v. City of Minneapolis, 108 N. W. 480, we find the Minnesota court holding against plaintiff’s contention. This was an action to recover damages alleged to have been occasioned to plaintiff’s property by the' vacation of certain streets. This ease was decided on three propositions: (1) Whether the plaintiff, as respects the property there involved, has suffered injury and damages by the vacation of the street different in kind from that suffered by the general [71]*71public, and is entitled to compensation under the provisions of the Constitution,of the state, which forbids the taking or damaging of private property for public use without compensation’s first being made or secured; (2) whether, in view of the fact that compensation was not made by the city at the time the council adopted the resolution vacating the street, action in vacating the same is valid; (3) whether the vacation of the street was a taking or damaging of plaintiff’s private property for public use. The court, in passing upon this question, said:
“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 lot is a'legal injury, differing in degree only from its total destruction. In Indiana, B. & W. R. Co. v. Eberle, 110 Indiana 542 (11 N. E. 467, 59 Am. R. 225), the court said: ‘The interest in the street which is peculiar and personal to the abutting lot owner, and which is distinct and different from that of the general public, is the right to have free access to his lots and buildings, substantially in the manner he would have enjoyed the right in case there had been no interference with the street.’ In Bigelow v. Ballerino, 111 Cal. 559, 563 (44 Pac. 307), the court said: ‘That the owner of property abutting on a public street has ah easement in' the street, distinct from the public right of way, which easement is property, and for an injury to this easement, the owner is entitled to compensation, under the constitutional guaranty that private property shall not be taken or damaged for public use without due compensation, ’ ’ ’ —citing further authority.
The court then proceeds:
“Analogous cases in this court, sustain plaintiff’s right to compensation. It was held, in Adams v. (C., B. & Q.) Railway Co., 39 Minn. 286, that the owner of a lot abutting on a [72]*72public street has, as an appurtenance to the lot and independent of his ownership of the fee in the street, an easement in the street to the full width thereof, which easement is subordinate only to the public right, and that any act of the public authorities which materially deprives him or materially interferes with the enjoyment of his easement is a taking of private property within the meaning of the Constitution,” —citing authorities.
The case then proceeds: “In the case of Aldrich v. Wetmore, 52 Minn. 164 (53 N. W. 1072), the court held that to entitle a party to maintain a private action for an obstruction of a public street, it was unnecessary for him to show that he was cut off from all access to his property; that it was the nature of the right affected, and not the number who suffered from the wrongful obstruction in the street, which determined the question whether an action for damages will lie.” This case holds that if an abutting lot owner suffers damage peculiar to himself by the vacation of a public street or alley, he is entitled to recover compensation. The court, however, says that “the learned court below adopted this view of the law, but held further that the action of the city council in attempting to vacate the street in question was a nullity, because no compensation was previously, or at all, paid or secured to plaintiff for the injury resulting therefrom. There is much force in this position, for it is the generally accepted doctrine of aril the courts that, under constitutional provisions like ours, where private property is taken for public use, payment of compensation is a condition precedent to the validity of the act of expropriation. . . . But the courts have excepted from this general rule cases of the character of that here under consideration. If we were to follow the general rule on the subject, and hold that, because plaintiff’s damages were not previously ascertained and paid, the action of the council in vacating the streets was void, it might cause much litigation and confusion in the cities and other municipalities of the state. No doubt many streets and alleys have heretofore been [73]*73vacated under circumstances precisely like those shown in this case, no compensation by way of damages having 'been ascertained or paid. For this, and the further reason that the exception to the general rule, though perhaps not logical, is reasonable and sufficiently protects all persons claiming damages, we feel constrained to adopt it as the law of this state, and thus obviate possible difficulties in other like cases. The damages for injuries of this nature, where no property is actually taken, are consequential, not direct; no person is actually deprived or dispossessed of his property, and the authorities hold that prepayment is unnecessary. The damages in such cases may be recovered against the municipality.”
See also, Clemens v. Connecticut Mutual Life Ins. Co., 184 Mo. 48, 60 (82 S. W. 1, 105 Am. St. 526). In that case it is said:
“In our opinion, the Colorado, Illinois, West Virginia and Louisiana courts correctly construe Sec. 21, Art. 2, of our Constitution [this article of the Constitution of Missouri is the same as ours, except that it provides for the payment of damages] in holding that where the property of a citizen is not taken, and his proprietary rights not disturbed, but the damage to his property is purely consequential, he is not entitled to have the same ascertained and paid before the proposed public work is done. . . . Having reached this conclusion, we hold that, whether plaintiff was an abutting owner or not, he was not entitled to have the improvements which were being made pursuant to an ordinance of the city, and clearly within its charter powers, enjoined. . . . that if he has any cause of action, it is against the city for damages. ’ ’
The Supreme Court of Louisiana, in McMahon v. St. Louis, A. & T. R. Co., 41 La. Ann. 827, 829, said:
“It is true the Constitution, Art. 156, provides that ‘Private property shall not be taken nor damaged for public purposes without adequate compensation being first paid.’ We will not say what might be the effect of this article [74]*74., if the act prohibited involved the taking of property, the value of which might be settled in advance. But in this case there is no taking of plaintiffs’ property . . .' The damages claimed are purely consequential in their nature, necessarily conjectural, and impossible of any accurate determination except after the construction of the road. To impose upon parties the necessity of settling and paying such damages before proceeding with the work would be to require a manifest impossibility.”
See also Denver & S. F. R. Co. v. Domke, 11 Colo. 247 (17 Pac. 777). This case cites with approval Parker v. Catholic Bishop of Chicago, supra; Spencer v. Point Pleasant & O. R. Co., 23 W. Va. 406; Lorie v. North Chicago R. Co., 32 Fed. 270; Morris v. City of Philadelphia, (Pa.) 49 Atl. 70. As holding to a contrary doctrine, see Pearsall v. Board of Supervisors, (Mich.) 42 N. W. 77; Horton v. Williams, (Mich.) 58 N. W. 369; Steinhart v. Superior Court, (Cal.) 70 Pac. 629; State ex rel. Smith v. Superior Court of King’s County, (Wash.) 66 Pac. 385; Livingston v. Board of Commissioners, (Neb.) 60 N. W. 555.
In vacating á public street, the damages to abutting property owners are of necessity' consequential. Sometimes the vacation of a street may be a direct benefit to the property owner. Property owners often petition for the vacation of a street. The mere act of vacation, in itself, may or may not cause damage to abutting property owners. The damages from the vacation may come to abutting property owners only by reason of the use to which the vacated street is put. The location of the street in relation to the property, the use to which the property is put, at the time of the vacation, may negative any idea of damage. The damages cannot always be ascertained before the vacation of the street. It is unlike the actual taking of the physical property. We do not think the vacation of a street is the taking of private property in contemplation of our Constitution. A different question might arise if the Constitution provided for compensation’s [75]*75first being made in ease of damage to private property for public use. If this constitutional provision were broad enough in its terms to cover damages, there surely would have been, no need to amend the Constitution in these other states so as to cover the question of damages, due to the vacation of a street.
We are not unmindful of the fact upon which some of the argument for the plaintiffs is based — that, in many of our own eases in which the right to recover damages for the vacation of a street is involved, this court sai 1 that the abutting property owner has an easement in the street; that his right to use the street is a right appendant to his property, and is, in itself, property, for the taking of which he is entitled to damages. Upon these decisions, the argument proceeds to the conclusion that, this right of an abutting property 'owner in the street to have the street maintained being appendant to his property, and an easement, and in itself property, for the taking of which he is entitled to damages, the taking of it is the taking of property in contemplation of the'constitutional provision, which cannot be done without first making compensation.
The question as to when compensation for damages shall be made, in case a street is vacated, has never been determined by this court directly. The question is new, so far as this court is concerned. It is therefore open to us to choose, between conflicting decisions, the better rule; the one most just and equitable in its application; the one that will not, in itself, affect vested rights and disturb existing conditions. Much of what has been said in previous cases was said at a time when there was involved the question as to whether or not an abutting property owner was entitled to recover anything on account of the vacation of the street, and the language used must be interpreted and understood in the light of what was then before the court for determination. The most that this court has determined, up to date, is that the plaintiffs are entitled to an action, at law to recover damages. [76]*76The question as to whether these damages should be first ascertained, paid, or secured was not, at any time, before this court, and was never determined before this time..
We are inclined to think that the better rule is the one adopted by the Minnesota and Illinois courts. These rules were adopted under a constitution broader than ours, and, therefore, for the reason heretofore stated, and for the reasons submitted in those cases, we think that the abutting property owner ought to be relegated to an action at law to recover his damages and that the city ought not to be required to ascertain and pay them before an ordinance is adopted vacating the street. There may be many abutting property owners on the street vacated. Many of them may suffer no damage; many of them may suffer but slight damage; many may be entitled to large damages; yet, if plaintiffs ’ contention be right, if the city council failed to proceed, under the law governing the right to condemn property for public purposes, to ascertain and pay the damages, before the right to vacate was complete, much expense and labor would necessarily be incurred in instances where no one suffered any damage by reason of the vacation, and yet, without the institution of condemnation proceedings, this ordinance would be void. If the righf to vacate a street is dependent upon the duty of the city to have the damages ascertained and paid before the right to vacate is complete, then, in every case where the city seeks to vacate a street or alley, such condemnation proceedings must be instituted, although, in the judgment of the city council, acting for the city, no private rights are invaded, no exit or entrance to private property obstructed; and this, too, where it is apparent that, at the time of the vacation, the abutting property owner suffers no damage that is ascertainable or measurable, and where the damage, if any, is such as may result only in the future from the use to which the vacated' ground is subsequently put, or is occasioned by a change in the use by the occupant of the premises abutting.
We think the better rule is to require the abutting prop[77]*77erty owner, whenever damages accrue to him which are ascertainable, to proceed, as in other cases, to recover his damages by an action at law. By this holding, he is deprived of no legal right to have full compensation for any wrong that is done him in the way of damages, whether it accrue immediately upon the vacation of the street, or subsequently by the use to which the vacated ground is put. Every rule ought to be as broad as the conditions that invoke it, and ought to be broad enough to secure substantial justice to the parties. No rule ought to be. broader than the necessity requiring its adoption.
On the whole record, we think there is no equity in plaintiffs’ contention, and the case ought to be and is — Reversed.
177eaver i and Preston, JJ., concur.
Deemer, C. J., Ladd and Evans, JJ., specially concur.
Salinger, J., dissents.