Salt Lake City v. Schubach

• Decision Date: 31 May 1945
• Docket Number: 6778
• Citation: 159 P.2d 149,108 Utah 266
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. SCHUBACH et al. (UNITED PACIFIC INS. CO., Intervener)

159 P.2d 149

108 Utah 266

SALT LAKE CITY v. SCHUBACH et al. (UNITED PACIFIC INS. CO., Intervener)

No. 6778

Supreme Court of Utah

May 31, 1945

Appeal from District Court, Third District, Salt Lake County; A H. Ellett, Judge.

Judgment in accordance with opinion.

E Ray Christensen, City Atty., and E. C. Jensen both of Salt Lake City, for Salt Lake City.

R. A. Burns and H. P. Thomas, both of Salt Lake City, for United Pacific Ins. Co.

Judd, Ray, Quinney & Nebeker, of Salt Lake City, for Tracy Loan & Trust Co.

Elias L. Day and Arthur E. Moreton, both of Salt Lake City, for William Schubach.

Larson, Chief Justice. Turner, J., concurs. Mc Donough, Justice (concurring). Wade, Justice (concurring). Wolfe, Justice (concurring in part, dissenting in part).

OPINION

Larson, Chief Justice.

An action to determine the liability of a property owner, and also of a tenant of the property, to the city, for damages suffered by the city due to injuries sustained by a pedestrian through defects in a trap door over a chute or vault under the sidewalk installed and maintained for the benefit of the property.

Defendants Brisacher are the owners of a three story building at the northeast corner of the intersection of Main Street and Broadway in Salt Lake City. Many years ago, the owners of the building with the consent of the city, constructed in and under the sidewalk on the south side of the building, a chute into the basement of the building for the putting of coal or merchandise into the basement. On the sidewalk over the opening into the chute was a metal trap door. In 1939 defendant Schubach leased the south part of the ground floor of the building for a jewelry store. North of this, part of the ground floor was subsequently leased by the National Shirt Company. The northern part of the ground floor and the entire second and third floors were leased by other tenants. Part of the basement had been leased to and was operated as a shoe store by the Campus Boot Shop, entered by a railed-in stairway in the south sidewalk. The chute above mentioned entered the building east of the Shoe Store. The lease to Schubach describes the property let as:

"The South Half of the store-room known as 279 South Main Street Salt Lake City, Utah, together with basement space thereunder, formerly occupied by Schramm-Johnson Drugs, and having a frontage of approximately twenty-two feet on Main Street and a depth of approximately seventy feet."

The property leased to the National Shirt Company is described as:

"The Store-room known as No. 277 South Main Street, Salt Lake City, Utah, together with basement space thereunder, said store-room having a frontage of approximately twenty-two feet on Main Street, and a depth of approximately seventy feet." (At the date of the Schubach lease, this store was known as the North half of No. 279 South Main.)

The United Pacific Insurance Company had issued a policy whereby it undertook to indemnify the city for any losses sustained by it through defects in the sidewalks. During January, 1942, due to some worn rivets in the trap door over the chute, a part of the metal lining the concrete edge of the hole, stuck up above the sidewalk level. A Mrs. Sabey tripped on this iron and sustained injuries, sued the city and recovered a judgment for $ 7875.50. The insurance company reimbursed the city in this amount. Thereafter the present action was brought by the city against the owner and one tenant of the store building (Schubach) to recover the amount of the judgment. Since the city had been reimbursed by its insurer the insurance company intervened and became, for all practical purposes, the plaintiff in this action. Tracy Loan & Trust Company is guardian of the estate of Jules Brisacher, an incompetent, and both will hereafter be spoken of as the Owner; the word tenant will be used to designate the defendant Schubach; the plaintiff will be called the City, and the intervening Insurance Company, called the Insurer. The trial court entered judgment against the city in favor of all defendants, against the Insurer as to the owner, and in favor of the Insurer as against the tenant. Plaintiff appeals from the judgment against it, the Insurer appeals from that portion of the judgment in favor of the Owner, and the tenant cross-appeals from the judgment against him, and from the judgment in favor of the Owner.

The appeal poses the following questions:

1. Is the owner responsible over to the city for the amount of the Sabey judgment?

2. Has the city a valid action against the tenant for the amount of the Sabey judgment?

3. If either of the above questions be answered in the affirmative, since the city has been made whole through insurance, can this action be maintained for the benefit of the insurer?

We will consider them in order.

1. That the city is charged with the duty of maintaining the sidewalks within its limits in a safe condition for use in the usual mode by pedestrians thereon is so well established as to need no citations of authority. See discussion of this rule and citations in the opinion of Mr. Justice Moffat in Jensen v. Logan City, 96 Utah 53, 83 P. 2d 311.

"A pedestrian has the right to assume that the sidewalk is in a reasonably safe condition, and to act upon that assumption." Coffey v. City of Carthage, 186 Mo. 573, 85 S.W. 532. See also Bills v. Salt Lake City, 37 Utah 507, 109 P. 745.

That action will lie against the city for injuries suffered due to defects in the sidewalk is well settled, but such liability must be predicated upon negligence. Morris v Salt Lake City, 35 Utah 474, 101 P. 373; Ray v. Salt Lake City, 92 Utah 412, 69 P. 2d 256, 119 A. L. R. 153. In the instant case the fact of injury, the cause thereof, the amount of damages and the negligence of the city are not in issue. Such matters were settled and established by the judgment in the case of Sabey v. Salt Lake City, which judgment concludes these parties as to those issues. Having paid that judgment can the city recover over against the owner of the abutting property? The right of an abutter to construct vaults under the sidewalk, or to make openings therein for coal chutes or cellar ways is not an incident of ownership of the abutting premises. Donnelly v. Rochester, 166 N.Y. 315, 59 N.E. 989; Jorgensen v. Squires, 144 N.Y. 280, 284, 39 N.E. 373. The legislature may however authorize such limited use of the sidewalks for the more convenient and beneficial use of the adjacent property. Perry v. Castner, 124 Iowa 386, 100 N.W. 84, 66 L. R. A. 160, 2 N.Y. Anno. Cas. 363; Id., 130 Iowa 703, 107 N.W. 940; Jorgensen v. Squires, supra; Gustafson v. Hamm, 56 Minn. 334, 57 N.W. 1054, 22 L. R. A. 565. Such special privileges or rights are justified as in the public interest by increasing business facilities, encouraging and making practicable better buildings and improvements on property and adding to the taxable value. Hatfield v. Straus, 189 N.Y. 208, 82 N.E. 172; Jorgensen v. Squires, supra; Donnelly v. Rochester, supra. The legislative power to permit such use of the sidewalks has been delegated to the municipalities. This follows from the grant to the cities of control over the streets and sidewalks. Secs. 15-8-23 and 15-8-11, U. C. A. 1943; Burton v. Chicago, 236 Ill. 383, 86 N.E. 93, 15 Ann. Cas. 965; Jorgensen v. Squires, supra. A city may impose conditions upon the abutter in respect to excavations under the sidewalks. Davis v. Clinton, 50 Iowa 585. A cellar vault, chute or passageway so constructed by permission of the municipality, is in itself a species of property, and the owner of the abutting property may protect it against trespassers as fully as other property. Parish v. Baird, 160 N.Y. 302, 54 N.E. 724, affirming 19 A.D. 629, 45 N.Y.S. 1145; In re Kings County Elevated R. Co., 105 N.Y. 97, 13 N.E. 18. In some states, notably New York, it is regarded as an easement appurtenant to the abutting property. Other authority states that it is not an easement in a legal sense, but a right based upon a revocable license or consent. All recognize however that it is a valuable or property right, which in the absence of express restrictions passes with the title to the adjacent premises. Westliche Post Ass'n v. Allen, 26 Mo.App. 181; Parish v. Baird, supra. Permission to construct such structures under the sidewalk may be inferred from acquiescence in their maintenance for many years. Chicago v. Robbins, 67 U.S. (2 Black) 418, 425, 17 L.Ed. 298; Gridley v. Bloomington, 68 Ill. 47; Village of Canandaigua v. Foster, 156 N.Y. 354, 50 N.E. 971, 41 L. R. A. 554. It is not a presumption of a grant of a permanent right in the street, nor of a title. Deshong v. New York City, 176 N.Y. 475, 483, 68 N.E. 880. And so, if made with municipal assent, express or implied, such vault, chute or cellar opening is not a nuisance per se, but may become a nuisance if not properly constructed or maintained for the safety of the public. Perry v. Castner, supra; Donnelly v. Rochester, supra. The person who, by permission, constructs such an opening impliedly agrees to do so with due care for the safety of the public. And so too does one who continues to maintain the same as an adjunct or access to the property. Jennings v. Van Schaick, 108 N.Y. 530, 15 N.E. 424, 2 Am. St. Rep. 459; Babbage v. Powers, 130 N.Y. 281, 29 N.E. 132, 14 L. R. A. 398; Canandaigua v. Foster, supra; Devine v. National Wall Paper Co., 95 A.D. 194, 88 N.Y.S. 704, affirmed 182 N.Y. 560, 75 N.E. 1129. The adjoining owner has no more right than any other person to do an act which renders the use of the sidewalk hazardous, or less secure than it would be but for such an act. When he does so he is guilty of a nuisance and liable to any person, who using due care, is...