Brownlow v. O'Donoghue Bros., Inc.

• Decision Date: 07 November 1921
• Docket Number: 3478.
• Citation: 276 F. 636
• Parties: BROWNLOW et al. v. O'DONOGHUE BROS., Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

276 F. 636

BROWNLOW et al. v. O'DONOGHUE BROS., Inc.

No. 3478.

United States Court of Appeals, District of Columbia.

November 7, 1921

Submitted October 11, 1921.

Appeal from the Supreme Court of the District of Columbia.

F. H Stephens, of Washington, D.C., for appellants.

George E. Sullivan, of Washington, D.C., for appellee.

SMYTH Chief Justice.

The appellee corporation is the lessor of a store building and the lot on which it stands, at the corner of Fourteenth and Irving streets, N.W., Washington. Its lease runs for five years from November, 1917, with the right to have it extended for five years. It maintains on the premises a filling station, through which gasoline is conveyed to automobiles and also sells there other automobile accessories. There are two entrances to the property on Irving street and one on Fourteenth street. The first is a residential street, and the second a business one, upon which there is a great deal of travel. Some time ago a District officer, at the instance of persons residing on Irving street, suggested that the filling station be transferred from the Irving street side to the Fourteenth street side, and it was done. Now it is proposed by the Commissioners to close the Fourteenth street entrance and compel the appellee to use only the Irving street entrance. As the property is situated, an automobile may enter from Fourteenth street and pass out on Irving street or enter at one of the Irving street entrances and pass out at the other. The claim of the Commissioners is that the use of the Fourteenth street entrance endangers pedestrians passing to and fro on the sidewalk.

On the other side of Fourteenth street, less than a block away, there is another establishment engaged in the same business as the appellee. which is so situated that all automobiles must enter from Fourteenth street, and, after having received their supply of gasoline, back out to the same street. This is done by permission of the Commissioners, and they have indicated no disposition to interfere with it. The Fourteenth street entrance of the appellee has existed for many years. It is claimed that this entrance is of great value to the appellee, that the entrances on Irving street are not sufficient to accommodate its trade, and that if the Fourteenth street entrance should be closed its business would suffer to a large extent. The court of first instance held that the appellee was entitled to egress from its property on both streets, and enjoined the appellants from closing the Fourteenth street entrance.

It is argued by the Commissioners that the question as to whether or not the entrance should be closed was resolved according to their best judgment concerning what the public safety required, and that the court has no power to review their decision, unless it appears to be an arbitrary one, which it is not. On the other hand, the appellee urges that the right to maintain the Fourteenth street entrance is a valuable incorporeal right attached to the lot, and that the Commissioners cannot take it away without giving just compensation therefor.

No doubt the Commissioners have the right to make reasonable regulations for the use of driveways across sidewalks (Highway Commissioners v. Ely, 54 Mich. 173, 19...