Boise City v. Sinsel

• Court: Idaho Supreme Court
• Writing for the Court: PORTER
• Citation: Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173 (Idaho 1952)
• Decision Date: 13 February 1952
• Docket Number: No. 7749,7749
• Parties: BOISE CITY v. SINSEL et al.

Page 173

241 P.2d 173

72 Idaho 329

BOISE CITY v. SINSEL et al.

No. 7749.

Supreme Court of Idaho.

Feb. 13, 1952.

C. Stanley Skiles, Boise, for appellant.

Maurice H. Greene, Boise, for respondent Nellie V. Sinsel.

Bryan P. Leverich, Salt Lake City, Utah, L. H. Anderson and E. H. Casterlin, Pocatello, for respondents Oregon Short Line R. Co. and Union Pac. R. Co. PORTER, Justice.

By this action, appellant seeks a mandatory injunction commanding respondents to eliminate and remove an encroachment and obstruction consisting of part of a building, situate upon a public street of Boise City, and seeks a permanent injunction restraining respondents from obstructing such street. The cause was tried to the court sitting without a jury. The court made findings of fact, conclusions of law and entered judgment dismissing the action. From such judgment appellant appeals to this court.

The controlling facts in this case are not seriously contested. In the year 1867 a plat of Boise City was executed and filed in the office of the Recorder of Ada County by the Mayor of the city. This plat laid out and designated as public streets, Front Street, running generally east and west, and Eighth Street, running generally north and south, both 80 feet in width. In the year 1870 the Federal Government issued a patent to the Mayor of Boise City in trust for the land included within said plat.

Prior to the year 1927, only 40 feet of Front Street was used for vehicular traffic. The north 20 feet of said street was used for sidewalk and parking. The south 20 feet was traversed by an open irrigation ditch running east and west between Eighth Street and Ninth Street. The street was curbed along a line 20 feet north of its south side.

The Oregon Short Line Railroad Company owns the land immediately adjacent to the southwest corner of the intersection of Front Street and Eighth Street. In the year 1927 such railroad company leased to C. J. Sinsel, the husband and predecessor in interest of respondent Sinsel, for a term of five years, a parcel of land 18 feet wide and 150 feet long, extending west from the west line of Eighth Street adjacent to the south boundary of Front Street. Such lease provided that the lessee, at his expense, would remove from said premises all structures and other property placed thereon by the lessee within 30 days after the termination of the lease.

On June 21, 1927, C. J. Sinsel appeared before the City Council where the following proceedings were had as shown by Defendants' Exhibit No. 5:

'Extract

From Minutes of Council Meeting

Held June 21, 1927, Tuesday, 9:00

O'Clock A.M.

Mayor Hanson in the Chair.

Roll Call showed the following Councilmen present. Cody, Roan. Absent: Worthington.

* * *

* * *

'C. J. Sinsel stated he had leased the property of the Oregon Short Line on the west side of Front Street at 8th Street and it was his intention to erect a modern packing plant on the site if permission could be granted for the building of a concrete structure projecting eight feet into Front Street and a concrete platform, truck height, extending to the curb. Mr. Sinsel further said it was his intention to erect a sidewalk the entire length of the block over the open ditch now there.

'Moved by Councilman Roan that the building inspector be instructed to issue a permit to Mr. Sinsel as requested.

'Councilman Cady seconded the motion.

'Ayes: Cady, Roan.

'All voting in the affirmative the motion was declared carried.

* * *

* * *

'Approved:

Walter Hansen

Mayor

'Attest:

Angela Hopper

City Clerk'

On July 14, 1927, C. J. Sinsel filed application for building permit together with his plans and specifications for the erection of a reinforced concrete one-story building upon the land leased from the railroad company and extending 8 feet into Front Street, together with a loading platform extending an additional 10 feet into Front Street. Having secured a building permit, Sinsel erected the building and loading platform in question which extend a total distance of 19 feet and 6 inches into Front Street for a distance of 150 feet west from the intersection of Eighth Street and Front Street. Apparently, Sinsel also covered the open ditch from Eighth Street toNinth Street, such ditch running under the loading platform.

The lease to C. J. Sinsel and his successor in interest, the respondent, Nellie V. Sinsel, has been renewed from time to time by the Oregon Short Line Railroad Company and its lessee, Union Pacific Railroad Company, and was in force and effect at the time of the commencement of this litigation.

In the year 1933, Front Street was made a part of the state highway system and designated as U. S. Highway No. 30. Traffic on Front Street has steadily increased since such designation. In 1948, the curb on the south side of Front Street was set back to the south property line making the portion of the street used for vehicular traffic 60 feet wide both east and west of the Sinsel warehouse. Front Street is now a main traveled, arterial street, carrying both U. S. Highway No. 30 and U. S. Highway No. 20.

Front Street is presently maintained as a four-lane street for vehicular traffic east and west of the Sinsel warehouse and as a three-lane street where it passes such werehouse. Traffic on the street is heavy and at times congested. Numerous accidents occur in the vicinity of the intersection of Eighth and Front Streets. The warehouse of respondent Sinsel not only occupies and obstructs the street, but large trucks and vans unloading at the platform add to the traffic hazard. There is herein inserted a replica of that part of Plaintiff's Exhibit No. 14 which shows the location of the warehouse and loading platform and of Front Street and Eighth Street as they are now used and maintained.

On December 12, 1949, the City Council of Boise City adopted the motion shown by Plaintiff's Exhibit No. 8, reading as follows:

'Extract

From Minutes of Council Meeting

Held December 12, 1949, Monday, 7:30

O'Clock P.M.

'Council met in regular session at 7:30 o'clock P.M. Mayor Howard presiding.

Roll call showed the following members present: Burt, Graham, Grim and Hardy.

City Attorney C. Stanley Skiles, present.

City Clerk Fred R. Bagley, present.

* * *

* * *

'Moved by Burt Seconded by Graham that the encroachments by the properties and buildings known as Bunting Tractor Company, the Sinsel warehouse and Davison Grocery Wholesale which encroachments are in and upon the public street known as Front Street be removed, and that any permit heretofore granted for such encroachments and obstructions be hereby cancelled and revoked. That the said encroachments and obstructions are a nuisance and the same, and each of them, are dangerous and constitute a hazard to the public and vehicular traffic over and upon Front Street, and the City Attorney take appropriate action for the removal and abatement of such encroachments and obstructions.

'Roll call on the motion resulted as follows:

'Yeas: Burt, Graham, Grim and Hardy.

'Motion carried.

* * *

* * *

'No further business the meeting adjourned.

'Approved:

Potter P. Howard

Mayor

'Attest:

Fred R. Bagley

City Clerk'

The conclusions of law of the trial court epitomized were, (a), that the proposal and application for building permit by C. J. Sinsel and the action of the council in directing the issuance of the permit constituted a contract and that such contract is valid and existing, (b), that this suit for mandatory injunction is not proper because the proceedings of the council declaring the Sinsel warehouse a nuisance were insufficient to constitute the foundation for this action, (c), that the city is estopped from maintaining this action without doing equity; and that the city has an adequate remedy through the exercise of its power of eminent domain; and (d), that the railroad companies did not participate in the creation of the obstruction, are not participating in its maintenance, and are not liable for its removal.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The principal assignments of error by appellant in their cumulative effect, challenge these conclusions of law. We will consider the conclusions of law in the order above set out.

The application for the building permit and the issuance thereof resulted only in a permissive use and did not vest in C. J. Sinsel a property or contractual right. Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004. The statement by Sinsel that it was his intention to erect a sidewalk the entire length of the block over the open ditch was merely an expression of an intention to do something in furtherance of the use of his warehouse and was not a covenant constituting consideration. It was not carried into the application for building permit. As to the actual construction thereafter, 150 feet of the open ditch was under the platform of his warehouse and the record is not clear as to how he covered the remainder of the ditch.

Further, the Council of Boise City, in the absence of statute, was without power to make a valid contract permanently alienating a part of Front Street or permitting a permanent encroachment and obstruction thereon limiting the use of the street by the public. Boise City v. Hon, 14 Idaho 272, 94 P. 167; Boise City v. Wilkinson, 16 Idaho 150, 102 P. 148; Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681. In Keyser v. City of Boise, 30 Idaho 440, at pages 444-445, 165 P. 1121, at page 1122, this court said:

'The authorities dealing with the question raised by the demurrer are conflicting, but we are of the opinion that the sounder rule and the rule supported by the better reasoned cases, is to the effect that the streets, from side to side and end to end, belong to the public, and are held by the municipality in trust for the use of the public. The city is therefore without authority, in the absence of a legislative enactment expressly permitting it, to...