City Of Richmond v. Smith

• Decision Date: 29 January 1903
• Citation: 101 Va. 161,43 S.E. 345
• Court: Virginia Supreme Court
• Parties: CITY OF RICHMOND. v. SMITH.

43 S.E. 345

101 Va. 161

CITY OF RICHMOND.

v.SMITH.

Supreme Court of Appeals of Virginia.

Jan. 29, 1903.

CITIES—OBSTRUCTION OF STREET—NUISANCE —STREET FAIR—MUNICIPAL CHARTER—AUTHORITY TO PERMIT OBSTRUCTION OF STREET—ACTS ULTRA VIRES—LIABILITY OF CITY.

1. The circuit court of the city of Richmond has no power to grant a charter of incorporation authorizing the beneficiaries therein to obstruct a public highway in the city.

2. A charter of a corporation, granted by the circuit court of the city of Richmond, authorized it to maintain in the city an exhibition of the manufactures and resources of the city or of other cities, counties, and states, by affording a permanent exposition of the various industries of the localities represented, and to hold or give such free or paid performances or parades as may seem advisable. Held not to authorize the obstruction of the streets of the city by a structure preventing public travel.

3. Under a municipal charter giving the city authority to remove structures, obstructions, and impediments from the street, and prevent them from being incumbered or obstructed, the city has no power to confer upon a corporation, organized for the purpose of giving a street fair, the right to erect a structure obstructing travel in a public street.

4. A structure 64 feet long, 12 feet wide, and 6 feet high, built without lawful authority, in a public street of a city, by a corporation organized to hold a street fair for the purpose of giving a free exhibition connected with such fair, is a nuisance per se, entitling a person injured by the giving way of the structure to recover from the city for such injuries.

5. The fact that a permit issued by a pity, authorizing the erection of an obstruction in a public street, was ultra vires and void, does not excuse the city from liability for personal injuries caused by the giving way of the structure; that liability being founded on the failure of the city to abate the nuisance, and keep its streets free from obstruction.

Error to law and equity court of city of Richmond.

Action by one Smith against the city of Richmond. From a judgment for plaintiff, defendant brings error. Affirmed.

H. R. Pollard and M. M. McGuire, for plaintiff in error.

Wise & Watkins and Wyndham R. Meredith, for defendant in error.

HARRISON, J. The record shows that in the year 1900 the Richmond Carnival Association obtained a charter of incorporation from the circuit court of the city of Richmond authorizing it to create, maintain, and conduct in the city of Richmond and county of Henrico such exhibitions and displays of the manufactures, resources, and industrial enterprises of the city of Richmond, or such other cities, counties, and states, as may tend to advance the welfare of such cities, counties, or states so exhibiting, by affording a temporary or permanent collection and exposition of the various industries, resources mercantile and business opportunities of the localities represented, for the encouragement of investment by home or foreign capital in existing or new enterprises; and in furtherance of this object to hold or give such free or paid performances, spectacles, entertainments, or parades as may to said corporation seem proper and advisable.

The association applied to the council of the city of Richmond for permission to use the streets and to erect certain structures thereon with a view to holding a street fair or carnival from May 14 to 19, 1900, inclusive. The permission was granted by an ordinance approved April 5, 1900, authorizing, "so far as the city could grant such authority, " the association to erect and maintain in and along the streets named wooden or canvas booths or other structures, and, with the consent of the committee on streets, to suspend the use of the roadbed of the streets used, or certain parts thereof, as a highway for horses or vehicles, during the period prescribed, and for three week days prior thereto and for three week days thereafter; it being further provided by the ordinance that the association might lease or rent to persons, firms, or corporations the booths or other structures for such compensation as to It may seem just, and that the association or its lessees might sell wares, goods, or merchandise, or exhibit shows or performances, without being liable to any tax therefor.

It further appears that among the structures erected by the association was one between Third and Fourth streets, on the north side of Broad street, 64 feet long, 12 feet wide, and 6 feet high, extending a distance equal to its width from the curb line into the street, with a 3-foot railing around the outside

The petition for a writ of error states that there were immense crowds of people on Broad street, and that, to entertain the crowd, numerous free shows were given, and among such performances a "cake walk" was in progress on the large platform mentioned on the night of May 19, 1900. That, for the purpose of the show, the stand was cleared, so that there were on the platform nine performers, a band of five or six musicians, some officers of the carnival association, and several special policemen; that the officers of the association and the policemen were there chiefly to keep the crowd from standing on the platform, and thus obstructing the view, and that they made many efforts to do so, in which they were partially successful; that in spite of these efforts, however, when the band struck up, and the performance actually commenced, many people clambered on tie outside of the stand, holding on by the railing; that the railing on the side next the sidewalk was thus pulled off; that the sidewalk was tightly packed with people, and, after the crowd was cleared away, the plaintiff, Robert Lee Smith, a boy between 12 and 13 years of age. was found on the pavement.with his left leg broken, and bruised on his hip and arms.

To recover damages for the injury thus received this action was brought by the infant plaintiff, suing by his next friend, against the city of Richmond and the Richmond Carnival Association. The result of the trial in the lower court was a judgment in favor of the plaintiff for $500, the carnival association being designated as primarily liable, as provided by statute (Acts 1899-1900, pp. 288, 289). This judgment we are asked to review and reverse.

The circuit court did not, as contended, have the power to grant a charter authorizing the beneficiaries thereunder to obstruct the public highway, and in the charter of the Richmond Carnival Association no such authority is found. The material part of the charter has been already set forth, and the language employed does not, expressly or by implication, authorize the obstruction of the streets of Richmond with the structure complained of In the case at bar.

The ordinance of the city authorizing the erection of the structure in question is relied on to defeat the claim of the plaintiff. The city had no power or authority, in the absence of a grant from the general assembly, to confer upon the carnival association the right to erect this structure in the public streets. No such authority is found in its charter or the general law. On the contrary, the charter only gives the city authority to remove structures, obstructions, and impediments from the streets, and to prevent them from being incumbered or obstructed. The power and authority of the city is contained in its charter, and bounded thereby. It has no other or different control of the streets than is prescribed in the charter or the general statutes of the state. Having no legislative authority to grant the use of the streets for such...