City Of Lynchburg v. Peters

• Decision Date: 14 January 1926
• Citation: 133 S.E. 674
• Court: Virginia Supreme Court
• Parties: CITY OF LYNCHBURG . v. PETERS et al.

133 S.E. 674

CITY OF LYNCHBURG .

v.PETERS et al.

Supreme Court of Appeals of Virginia.

Jan. 14, 1926.

Rehearing Denied with Modification June 28, 1926.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Close.]

Appeal from Corporation Court of Lynchburg.

Suit by Don P. Peters and others against the City of Lynchburg. Prom a final decree for plaintiffs, defendant appeals. Reversed and rendered.

T. G. Hobbs and Fred Harper, both of Lynchburg, for appellant.

Randolph Harrison, of Lynchburg, for appellees.

CHICHESTER, J. This is a suit in which Don P. Peters and others, residents of the city of Lynchburg, Va., hereinafter referred to as complainants, seek to enjoin the city council of that city from closing Court street for a distance of 378 feet, between Washington and Twelfth streets, where it intersects with Thirteenth street, and Thirteenth street for a distance of 311 feet, where it intersects with Court street, between Church and Clay streets, and from converting the portions of the streets so closed, together with certain adjacent lots, now owned by the city, into a public park, playground, and athletic field.

A plat showing the area owned by the city, the streets mentioned above, and the lots owned by the complainants appears below, and reference is made to it to make clear the situation:

Previous to the filing of the bill for injunction the city council, at a regular meeting thereof, had adopted an ordinance closing the portions of Court and Thirteenth streets indicated on the plat, and, by resolution, had directed the city manager to proceed with the grading and preparation of the park or athletic field, in accordance with the plans submitted to the council, and provided for in the 1924 budget.

At the July term of the corporation court, complainants filed their bill in chancery, alleging that they were owners of property occupied by them for hospital and residence purposes, abutting on portions of Court and Thirteenth streets, not abutting on any of the closed portions of these streets, however, but adjoining or in the near vicinity of the proposed park and athletic field; that the city had already obstructed the streets, which it had no authority in law to close; that Court and Thirteenth streets had been open to the public as streets for over 100 years, and that complainants had purchased their properties adjacent thereto with reference to the plat or map duly recorded showing the streets; that they had vested rights to the use of the easement in the streets necessary to the enjoyment of their lots; that the establishment and maintenance of the park would constitute a public nuisance; and that they would be damaged thereby in a way that could not be adequately compensated for in damages. They prayed an injunction restraining the city from further prosecution of the work, and for a mandatory injunction requiring the city to restore the streets to their former condition.

The corporation court awarded a temporary injunction.

The city filed a demurrer and answer to the bill, and for grounds of demurrer alleged:

That the nuisance complained of, if any nuisance at all, was a public nuisance; and the plaintiffs' bill did not disclose any such special or peculiar damage to them as would permit them to proceed in equity for relief against it.

That the bill did not disclose any facts which would justify a court of equity in holding the acts of the city to constitute a nuisance per se, against which an injunction could be awarded.

The court overruled the demurrer, and the parties, by leave of court, filed an agreed statement of facts, based upon the bill and answer, as follows:

"It is hereby agreed between the parties to the above-styled cause, as the basis of a decision on the bill, answer, and replication, that the allegations of the bill state facts that are to be considered as proved by formal testimony; but in making this admission the defendant does not concede the following conclusions based on said facts:

"(1) That the proposed public park, playground, and stadium, and the uses thereof, will constitute a nuisance per se.

"(2) That the property of the several plaintiffs would be injured to the extent stated in the bill.

"(3) And the defendant does not concede that in the opinion of the council there is no public need for the public park, playground, and athletic field to be established, as set forth in the bill."

The city then moved the court to dissolve the injunction and dismiss the bill, both of which motions the court overruled and entered a final decree perpetuating the injunction and requiring the city to restore the streets.

The learned chancellor filed with the record in the case an able opinion setting forth his views and embodying his reasons for thus disposing, of the case. In that opinion the issues are discussed under two heads:

(1) Involves the question as to whether authority has been conferred upon the city council of Lynchburg to close any of its streets and use them as an athletic field and stadium; and, (2) if it has no such authority, can a court of equity prevent such closing and diversion to other use at the suit of complainants?

The lower court answered the first question in the negative and the second question in the affirmative. We feel that the chancellor erred in so holding, and that the decree entered in this cause in the corporation court should be reversed.

The case was very ably argued before this court orally and in the briefs, both on behalf of the appellants and on behalf of the appellees.

We will discuss the case upon the issues raised by the bill and answer and the agreed facts, upon the motion to dissolve the injunction and dismiss the bill. They are:

(1) The right of the city of Lynchburg to permanently close the streets referred to, and thereafter, under the facts presented by the record here, to use the vacated area together with the lots surrounding such area, which are owned by the city, for a public park.

(2) Whether a park or stadium, such as is contemplated, is a nuisance per se.

1. This question is one of first impression in Virginia. It is well settled in Virginia and elsewhere that a city has no authority to divert public streets or any part thereof to the exclusive use of private interests. Norfolk v. Chamberlaine, 29 Grat. (70 Va.) 539; City of Richmond v. Smith, 101 Va. 161, 43 S. E. 345; Smith v. McDowell, 148 111. 51, 35 N. E. 141, 22 L. R. A. 393.

The question here presented is whether a city, authorized by general act of the Legislature or by its charter to permanently close, or vacate, its streets, may, if it acts in good faith, close streets or parts thereof, and convert them when it owns the abutting territory, under the conditions here disclosed,. to other public uses.

The first inquiry is, Has the city of Lynchburg the authority, under its charter, to close permanently its streets?

[2, 3J Streets are public highways, and hence the Legislature has supreme control over them, to open, improve, repair, or to vacate them (Norfolk v. Chamberlaine, supra; Roanoke Gas Co. v. Roanoke, 88 Va. 810, 14 S. E. 665); but this authority may be delegated to municipalities, and, when so delegated, may be exercised by the municipalities to the full extent of the power conferred (Dillon on Municipal Corp. § 1160; Elliott on Municipal Corp. § 98; Elliott on Streets and Roads, § 1177; Abbott on Municipal Corp. § 839; Roanoke Gas Co. v. Roanoke, 88 Va. 810, 14 S. E. 665; 26 Cyc. 287, 840).

The authority to open and close streets is sometimes conferred by general statutes, and so essential an incident of local government is it that it has been held to have been granted in a general welfare clause in a general statute relating to cities. Commonwealth v. Railroad, 138 Ky. 749, 129 S. W. 96.

Section 3030 of the Code of Virginia declares that:

"Every city and town shall have power to lay off streets, walks, or alleys; alter, improve, and light the same, and have them kept in good order."

The word "close" is not used in the general statute, but a Florida statute granting authority to cities to improve, alter, extend and open streets, etc., was construed in Florida, etc., v. Ocala, etc., 39 Fla. 306, 22 So. 692, to confer authority to abandon a portion of a street. See, also, In re Vacation of Union St., 140 Pa. 525, 21 A. 406.

The authority to open and close, etc., can undoubtedly be, and generally is, conferred by charter. Home Building Co. v. Roanoke, 91 Va. 59, 20 S. E. 895, 27 L. R. A. 551; Powell v. Wytheville, 95 "Va. 75, 27 S. E. 805; Harrisonburg v. Roller, 97 Va. 584, 34 S. E. 523.

The charter of the city of Lynchburg, among other things, provides:

"To take care, supervision and control of streets, squares and commons, and to CLOSE, extend, widen, narrow, lay out, pave, graduate, improve and otherwise ALTER the streets in said* city." (Caps ours.)

Not only, therefore, has the Legislature conferred upon the city of Lynchburg by general law the power to alter its streets but it has specifically conferred upon it the power to close them, or otherwise alter them, by its charter.

The lower court held that the power to close its streets conferred upon the city of Lynchburg by its charter had reference to temporary closure for purposes of repairs or essential work in or upon the streets, etc., and a distinction was made between closing and vacating streets. It would seem to be apparent that it would not only not be necessary to grant the power to temporarily close a street for repair, since to close for repairs is an incident of the duty to keep in repair, but we do not think the authorities, or sound reason, justify this narrow and restricted construction, or the distinction drawn. We have seen that the power to alter conferred by general statute has been construed to confer the power to close permanently. Surely the specific power, conferred by charter, to close and otherwise alter, is not less comprehensive than the power to...