City of Lynchburg v. Peters

• Decision Date: 14 January 1926
• Citation: 145 Va. 1
• Parties: CITY OF LYNCHBURG v. DON P. PETERS AND OTHERS.
• Court: Virginia Supreme Court

Page 1

145 Va. 1

CITY OF LYNCHBURG v. DON P. PETERS AND OTHERS.

Supreme Court of Virginia, Richmond.

January 14, 1926.

Rehearing refused, Wytheville, June 9, 1926.

1. STREETS AND HIGHWAYS — Diversion to Private Interests. — A city has no authority to divert public streets or any part thereof to the exclusive use of private interests.

2. STREETS AND HIGHWAYS — Streets are Public Highways — Legislature Controlling — Delegation of Power to Municipal Corporation. — Streets are public highways, and hence the legislature has supreme control over them, to open, improve, repair, or to vacate them; 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.

3. STREETS AND HIGHWAYS — Authority of Open and Close. — The authority to open and close streets is sometimes conferred by general statute, 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.

4. STREETS AND HIGHWAYS — Closing Streets — Power of the City of Lynchburg to Close Streets and to use them as a Park and Athletic Field. — The city council of Lynchburg, acting in good faith, could legally close streets and use them as a site for an athletic field and stadium under section 3030 of the Code of 1919, authorizing municipalities to alter their streets and the city charter empowering the city to close and otherwise alter its streets.

5. STREETS AND HIGHWAYS — Authority to Open and Close Conferred by Charter. — The authority to open and close, etc., can undoubtedly be, and generally is, conferred by charter.

6. MUNICIPAL CORPORATIONS — Power of Municipality — Express Grant or Fair Implication. — The powers of municipal corporations are limited to those granted in express terms, or fairly implied, as essential to $* declared object and purpose.

7. STREETS AND HIGHWAYS — "Close" — "Vacate." — There is ample authority for holding the terms "close" and "vacate," where the closure is permanent, are interchangeably used. Indeed they can have no different meaning when applied to the authority of a city over its streets.

8. INTERPRETATION AND CONSTRUCTION — Ordinary Meaning of Words. — The rule of construction is to give words their ordinary meaning unless a contrary meaning is clearly intended.

9. STREETS AND HIGHWAYS — Closing — Obstructing. — It is, of course, true, generally speaking, that streets can only be closed, in the exercise of judgment and discretion of the city council for the public welfare. They cannot be obstructed or partially or temporarily closed for the benefit of private interests.

10. STREETS AND HIGHWAYS — Closing — Reviewed by Courts. — When the power to vacate or close streets has been delegated to a municipality, in the absence of a showing that the closure was for solely private benefit, or that it was the result of collusion or fraud, it is the exercise of a political or legislative function which the courts will not review.

11. STREETS AND HIGHWAYS — Closing — Streets Held in Trust for Public Services — Inconsistent Use. — While it is true that the municipality holds the streets in trust for public purposes, and that it cannot put them to any use inconsistent with their uses as streets, yet this principle does not interfere with the municipality's authority to close them when that authority has been granted.

12. STREETS AND HIGHWAYS — Closing — Streets Acquired by Dedication or Condemnation. — The power to close streets may be exercised whether they were acquired by dedication or by condemnation. If the street is legally closed, the trust ends so far as maintaining it as such is concerned.

13. STREETS AND HIGHWAYS — Fee in Street — Rights of Abbuting Owners — Abandonment or Closure of Streets. — Ordinarily, that is, in the absence of a grant affecting the right of a lot owner abutting on a street, he owns the fee in the land occupied by the street to the center thereof for the full distance of his lot frontage; and, in case of abandonment or legal closure of a street, the unrestricted use and ownership is in the lot owner.

14. STREETS AND HIGHWAYS — Rights of Abutting Owners. — An abutting owner in common with the general public has a public right of way over the street, and as an abutting landowner, he has in addition certain property rights which the public generally does not possess, among them is the right of egress or ingress from and to his lot by way of the street.

15. STREETS AND HIGHWAYS — Closing Street — Rights of Property Owners Abutting on the Street but not on the Portion of the Street Closed. — Abutters upon a public street, simply as abutters, have no right of travel in the street as against the State, which would entitle them to compensation if the street be closed under the authority of the State, in a case where no portion of the street in front of their abutting estates is closed. The easement of travel which they enjoy is a public easement, and they enjoy it simply as a portion of the public. It is competent for the State, representing the public, to authorize the entire discontinuance of a street, so long as the abutters have access and egress to and from their estates by other ways.

16. STREETS AND HIGHWAYS — Closing Streets — Rights of Property Owners Abutting on the Street but Not on the Portion of the Street Closed — Case at Bar. — The city of Lynchburg closed portions of two streets for the purpose of converting the land into an atheletic park and stadium as it had authority to do under general law and its charter. Complainants were lot owners abutting on the closed streets but not on the portions closed.

Held: That complainants had no private easement of way distinct from the rights of the public, and were not entitled to compensation by virtue of their location upon the streets, nor were they entitled to an injunction restraining the closing of the streets.

17. STREETS AND HIGHWAYS — Closing Streets — Closed Portions Converted to Other Public Uses. — Streets or portions of streets can be vacated and such streets or portions thereof diverted to other public uses where the public uses to which they are put are within the scope of the city's authority.

18. STREETS AND HIGHWAYS — Closing Streets — Closed Portions Converted to Other Public Uses. — The city of Lynchburg by its charter, subsection 5 of section 9, is specifically given authority to establish parks, playgrounds, stadiums, etc., and to acquire land therefor by purchase, condemnation or otherwise or to establish and build them upon city property. While under this provision the city could not use, or permit to be used, the streets of the city for private or public purposes, other than as streets, yet, once a street is lawfully closed, it is no longer a street, and the city may use the vacated area for any public purpose to which it may be legally dedicated.

19. STREETS AND HIGHWAYS — Fee — Reverter Where Street is Closed. — Where the city of Lynchburg owned all the land abutting on the closed portions of certain streets, if the streets were lawfully closed, the fee in the land formerly occupied by the streets is in the city and under the authority of the city charter, subsection 5 of section 9, can be used along with the surrounding territory which the city also owns, for the establishment of a park or stadium, or for any other purpose authorized by law.

20. NUISANCES — Injunction — Structure that May Become a Nuisance. — It is a well established principle of equity jurisprudence that where a proposed structure, or the use of it, is not a nuisance per se, a court of equity will not grant an injunction against the erection of the structure or the use, merely because it may become a nuisance. The alleged nuisance must be the necessary result or the court will await the actual results.

21. NUISANCES — Public Nuisance — That Which the Law Authorized. — That cannot be a public nuisance which the law authorizes.

22. NUISANCES — City Parks and Playgrounds — Case at Bar. — Code of 1919, section 3030, provides that a city shall have power to establish and maintain parks and playgrounds. By its charter (Acts 1923, ch. 51), the city of Lynchburg is authorized to establish public squares, playgrounds and parks and to maintain stadiums, swimming pools, etc.

Held: That in view of these provisions, the mere establishment of an athletic park, and the mere construction of a stadium thereon, could not, as a matter of law, be held a nuisance per se.

23. NUISANCES — City Parks and Playgrounds — Case at Bar. — While the mere establishment of an athletic field and stadium by a city, could not be held a nuisance per se, yet they may be so conducted as to create a nuisance, and in that event the courts would have full power, upon proper proceedings, to enjoin that which is unlawful. But it cannot be assumed that the city will permit such a nuisance to be created.

24. NUISANCES — Playground for Children. — It has been held that even where not established by municipal authority under a charter, a playground for children is not a nuisance per se.

25. INJUNCTIONS — Irreparable Injury — Closing of Streets and Establishment of a Park. — In a suit to enjoin the closing of certain streets and the establishment of a park, complainants' bill did not show wherein complainants suffered any special or peculiar damage or damages to private property as distinguished from the damage sustained by the public at large. Complainants alleged irreparable injury but alleged no facts to show it.

Held: That the mere allegation of irreparable injury was not sufficient.

Appeal from a decree of the Corporation Court of the city of Lynchburg. Decree for complainant. Defendants appeal.

The opinion states the case.

T. G. Hobbs and Fred Harper, for the appellant.

Randolph Harrison, for the appellees.

CHICHESTER, J., delivered the opinion of the court.

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