City of Philadelphia v. Sheppard

• Decision Date: 13 November 1893
• Docket Number: 296
• Parties: Philadelphia, Appellant, v. Sheppard et al
• Court: Pennsylvania Supreme Court

27 A. 972

158 Pa. 347

Philadelphia, Appellant, v. Sheppard et al

No. 296

Supreme Court of Pennsylvania

November 13, 1893

Argued March 28, 1893

Appeal, No. 296, Jan. T., 1893, by plaintiff, from decree of C.P. No. 1, Phila. Co., March T., 1892, No. 692, dismissing bill in equity against A. Sheppard and Lawrence Charatte.

Bill to compel removal of fruit stand.

The facts appear by the opinion of the Supreme Court.

The court below, BIDDLE, J., entered the following decree:

"And now, December 19, 1892, this cause came on to be heard upon bill and answer and was argued by counsel, and thereupon upon consideration thereof, it is ordered, adjudged and decreed that the plaintiff's bill be dismissed, with costs; it being the opinion of the court that section 3d of the act of April 16, 1838, had placed in the city of Philadelphia the power to regulate the whole subject by ordinance, and that, if the ordinance approved December 24 1864, was not intended to give permission to the nuisance complained of, it should say so in terms not liable to be misunderstood."

Error assigned was above decree, quoting it.

Decree affirmed and appeal dismissed at the costs of the appellant.

Norris S. Barratt, assistant city solicitor, Charles F. Warwick, city solicitor, with him, for appellant, cited: Com. v. Flemming, Lewis Cr. L. 533; Com. v. Strickler, Lewis Cr. L. 535; Yates v. Warrenton, 84 Va. 337; Callahan v. Gilman, 107 N.Y. 360; Kelly v. Com., 11 S. & R. 345; Smith v. State, 3 Zab. 712; Moyamensing v. Long, 1 Pars. 143; Wood on Nuisance, § 252; Langsdale v. Bonton, 12 Ind. 467; State v. Berdetta, 73 Ind. 185; Haynes v. Thomas, 7 Ind. 38; St. Vincent O. Asylum v. Troy City, 32 Am. L.R. 286; Wartman v. Phila., 33 Pa. 202; State v. Laverack, 34 N.J.L. 201; Pettis v. Johnson, 56 Ind. 139; Com. v. Blaisdell, 107 Mass. 234; People v. Vanderbilt, 58 N.Y. 396; State v. Woodward, 23 Vt. 92; City v. Pass. R.R., 8 Phila. 648; Frankford v. Lennig, 2 Phila. 403; City v. Friday, 6 Phila. 278; City v. Dunbar, 1 Lanc. 306; Brightly's City Digest, 30; Manayunk v. Davis, 2 Par. 289; Schnell v. City, 1 W.N. 636; Com. v. Davenger, 10 Phila. 479; City v. Duncan, 4 Phila. 145; Com. v. Finklieimer, 9 Phila. 504.

No brief filed or argument offered for appellee.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and DEAN, JJ.

OPINION

MR. JUSTICE McCOLLUM:

The city of Philadelphia, appellant, filed a bill in equity against A. Sheppard and Lawrence Charatte, appellees, charging, in the fourth paragraph thereof, that the appellees "have erected, in violation of law, a certain wooden stand for the sale of candy and fruit, thirty-six feet long on Eighth street, and three feet and seven inches in width from the building line, upon the footway, on the east side of Eighth street and south corner of Walnut street, and against the building occupied by said Sheppard." It was also charged therein that "said wooden stand extends four feet six inches upon the footway of Walnut street, from building line, and is two feet in width on said Walnut street." The prayer of the bill was that the appellees be enjoined and restrained from maintaining said stand upon the said highways, and that they be commanded to take it down and remove it. The appellees answered, denying that the stand encroached on Walnut street in any degree, that it was thirty-six feet long and three feet and seven inches in width on Eighth street, but admitting that it was twenty-seven feet long and three feet and six inches in width on said street. It was then alleged in the answer that "such stands have always been permitted by the authorities of the city of Philadelphia, both in front of property of the said city and in front of property of individuals, provided that when built upon streets fifty feet wide and upwards they do not project into such streets more than four feet three inches from the house line."

The case was heard in the court below on bill and answer, and the hearing resulted in a dismissal of the bill at the cost of the city, on the ground that "section 3 of the act of April 16, 1838, had placed in the city of Philadelphia the power to regulate the whole subject by ordinance, and that, if the ordinance approved December 24, 1864, was not intended to give permission to the nuisance complained of, it should say so in terms not liable to be misunderstood."

It will be conceded, we think, that the city ought not to come into a court of equity for the purpose of...