Brown v. Town of Carrollton

• Decision Date: 14 January 1907
• Citation: Brown v. Town of Carrollton, 122 Mo. App. 276, 99 S.W. 37 (Mo. App. 1907)
• Parties: BROWN et al. v. TOWN OF CARROLLTON et al.
• Court: Missouri Court of Appeals

99 S.W. 37

122 Mo. App. 276

BROWN et al. v.TOWN OF CARROLLTON et al.

Kansas City Court of Appeals. Missouri.

January 14, 1907.

1. MUNICIPAL CORPORATIONS—CHARTER—NUISANCES—REMOVAL.

Where the charter of a town conferred power to prevent and remove nuisances, without any provision authorizing the town council to define and declare what was a nuisance, the town had only power to remove summarily conditions which were nuisances per se at common law.

2. SAME—PROJECTIONS OVER STREET — AWNINGS.

Awnings constructed of wood, with roofs covered with metal, extending over and about 15 feet above a street, and attached to substantial brick buildings, the outer edge resting on posts in the sidewalk or curb, did not constitute a public nuisance per se.

3. SAME—SUMMARY REMOVAL.

Where wooden awnings over a city sidewalk did not constitute a public nuisance per se, whether they were so constructed and maintained as to interfere with the public use of the street, or whether they had become a menace to the public safety, was a question of law for the courts; the city having no authority to declare the same a nuisance and require the summary abatement thereof.

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Suit by I. R. Brown and others against the town of Carrollton and others.From a judgment in favor of plaintiffs, defendants appeal.Affirmed.

Jones & Conkling, James F. Graham, and Busby & Busby, for appellants.Lozier, Morris & Atwood, for respondents.

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 15 feet.They are attached to substantial brick buildings, and extend over the sidewalk for a distance of about 10 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 that, "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 breath."Wood on Nuisances, p. 302, § 250.See, also, Tiedeman on Municipal Corporations, § 299;Elliott, Roads & Streets, § 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. § 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, Mun. Corp. § 660; Tiedeman on Mun. Corp. § 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.Metropolitan City Ry. Co. v. Chicago, 96 Ill. 620;Emerson v. Babcock, 66 Iowa, 257, 23 N. W. 656, 55 Am. Rep. 273;Commonwealth v. Moorehead, 118 Pa. 344, 12 Atl. 424, 4 Am. St. Rep. 599.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 N. Y., 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. LawMun. Corp. § 1311;State v. Leaver, 62 Wis. 387, 22 N. W. 576;Chase v. City of Oshkosh, 81 Wis. 313, 51 N. W. 560, 15 L. R. A. 553, 29 Am. St. Rep. 898.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...