Brown v. Town of Carrollton

• Citation: 99 S.W. 37,122 Mo.App. 276
• Parties: I. R. BROWN et al., Respondents, v. TOWN OF CARROLLTON et al., Appellants
• Decision Date: 14 January 1907
• Court: Court of Appeals of Kansas

99 S.W. 37

122 Mo.App. 276

I. R. BROWN et al., Respondents, v. TOWN OF CARROLLTON et al., Appellants

Court of Appeals of Missouri, Kansas City

January 14, 1907

Appeal from Carroll Circuit Court.--Hon. John P. Butler, Judge.

AFFIRMED.

Affirmed.

Jones & Conkling, James F. Graham and Busby & Busby for appellants.

Filed argument.

Lozier Morris & Atwood for respondents.

Filed argument.

OPINION

BROADDUS, P. J.

--This is a proceeding by injunction to restrain the town of Carrollton from removing certain awnings over the street in front of the abutting property of plaintiffs. The awnings were erected prior to the year 1896, and are constructed of wood with roofs covered with metal. The height of these awnings above the street is about fifteen feet. They are attached to substantial brick buildings and extend over the sidewalk for a distance of about ten feet, and are supported on the outer edge by posts resting upon the sidewalk or curbing. In May, 1905, the council of the town of Carrollton adopted an ordinance declaring wooden awnings over certain public streets nuisances and ordering their removal. In 1889, the council enacted an ordinance which prohibited and declared as a nuisance all awnings of the kind in controversy. In 1896 an ordinance was passed by the council prohibiting the erection of awnings on the streets fronting the public square and further providing: "Hereafter, no wooden awning, cover or shade shall be repaired or reconstructed, and whenever the same shall be condemned as a nuisance, or be in need of repair or reconstruction, the same shall be held as a nuisance." Carrollton is governed by a special charter, with power "to prevent and remove nuisances." The only witness in the trial was J. N. Tuley, who testified that the awnings were of a substantial character and did not in any way impede public travel. The judgment of the court was in favor of plaintiffs and decreed that the temporary injunction theretofore issued be made perpetual, from which the defendants appealed.

As we view it, the only question in the case is, were the awnings nuisances per se? The affirmative rests with the defendants. If they were not such, the action of the town council was not a finality, and the judgment of the circuit court must be sustained if it is found to be supported by the evidence. If the awnings were a nuisance, they were an offense against the public at large, and the case falls within the law governing public nuisances. It is said that, "Every actual encroachment upon a highway by the erection of a fence or building thereon, or any other permanent or habitable obstruction, may fairly be said to be a nuisance, even though it does not operate as an actual obstruction upon a public right. . . . The public is entitled to the full and free use of all the territory embraced within a highway, in its full length and breadth." [Wood on Nuisances, p. 302, sec. 250; see also Tiedeman on Municipal Corporations, sec. 299; Elliott, Roads and Streets, sec. 645.] In the State of New York, it was held that, in the absence of legislative authority for its erection, an awning extending over a sidewalk was an obstruction under the common law. [Smith's Mod. Law of Mun. Corp., sec. 1313.] A structure erected upon a street, without the sanction of the Legislature, is a nuisance, and the local corporate authorities cannot give a valid permission to thus occupy streets without express power to this end conferred upon them by legislation. [2 Dillon on Mun. Corp., sec. 660; Tiedeman on Mun. Corp., sec. 300.] Any erection or obstruction placed without authority in any part of a street, which deprives the public of the use of any part thereof is a nuisance. [Railway Co. v. Chicago, 96 Ill. 620; Emerson v. Babcock, 66 Iowa 257, 23 N.W. 656; Commonwealth v. Moorehead, 118 Pa. 344, 12 A. 424.] A permanent wooden awning covering the street was held to be a public nuisance which the public authorities had the right to remove. [Hume v. Mayor, etc., of New York, 74 N.Y. 264.] And it is held that, "A city may without notice to an abutting landowner remove shade trees which have been growing on a sidewalk of a public street, if they constitute an obstruction to public travel; and whether or not such trees are an obstruction must be determined by the proper city authorities, and their determination cannot be reviewed by the courts, unless they have clearly abused their discretion." [Smith's Mod. Law Mun. Corp., sec. 1311; State v. Leaver, 62 Wis. 387, 22 N.W. 576; Chase v. The City of Oshkosh, 81 Wis. 313, 51 N.W. 560.] There are an almost innumerable number of other authorities to the same effect.

But a broad statement of the proposition that, any encroachment on a public street by an abutting owner is a nuisance, whether it interferes with its use by the public or not, must be accepted with some modification under the law in this State. Such abutting owner has certain rights in the street that are not enjoyed by the public at large. He is the owner of the fee to the middle of street, subject to the public easement for travel. "An abutting property-owner has the right to construct a vault and coal hole in the sidewalk in front of his premises, provided the sidewalk is left in such a condition as to be reasonably safe for ordinary travel, and the rights of the public left otherwise undisturbed, and he can exercise this right without any legislative permit from the municipality." [Gordon v. Peltzer, 56 Mo.App. 599.] And he is the owner of the shade trees in the street in front of his property. [Walker v. Sedalia, 74 Mo.App. 70; McAntire v. Telephone Co., 75 Mo.App. 535.] And the city's right to remove them without compensation depends upon the fact that they obstruct public travel. [Colston v. St. Joseph, 106 Mo.App. 714, 80 S.W. 590; Scott v. Marshall, 110 Mo.App. 178, 85 S.W. 98.] "Cellar doors when constructed in a sidewalk as passageways to cellars under the abutting property, are not nuisances per se, if properly constructed in good repair, and...