City of Stillwater v. Lovell

• Decision Date: 11 October 1932
• Docket Number: Case Number: 21111
• Citation: 159 Okla. 214,15 P.2d 12,1932 OK 661
• Parties: CITY of STILLWATER et al. v. LOVELL et al.
• Court: Oklahoma Supreme Court

1932 OK 661

15 P.2d 12

159 Okla. 214

CITY of STILLWATER et al. v. LOVELL et al.

Case Number: 21111

Supreme Court of Oklahoma

Decided: October 11, 1932

Syllabus

¶0 1. Municipal Corporations--Power to Vacate Streets not Inherent--Streets to Be Vacated for Benefit of Public and not for Benefit of Private Individual.

"A municipal corporation has no inherent power to vacate a street within its limits or any part thereof. Even when specifically authorized by the Legislature to vacate streets, a municipal corporation cannot lawfully vacate a public street or highway for the benefit of a private individual. A street or highway cannot be vacated unless it is for the benefit of the public that such action should be taken." 19 R. C. L. 785, Municipal Corporations, sec. 91.

2. Same.

"If the public interest is not the motive which prompts the vacation of a street, whether partial or entire, the act of vacation is an abuse of power, and especially is it a gross abuse of power if it is authorized without reference to the rights of the public and merely that the convenience of a private individual may be subserved." Id., citing Marietta Chair Co. v. Henderson, 121 Ga. 399, 49 S.E. 312, and other authorities too numerous to mention.

3. Same--Scope of Power to Regulate Use of Streets--Invalidity of Ordinance Diverting Streets From Proper Use.

"* * * The power to regulate the use of streets refers to legitimate public uses not inconsistent with the ordinary and paramount use for travel thereon, or with the private rights of abutting property owners. An ordinance having the effect of diverting the streets from a public to a private use or of unreasonably appropriating them to a public use other than that of ordinary travel by pedestrians and vehicles is ultra vires and void." 19 R. C. L. 1149, 1150, Municipal Corporations, sec. 424, citing Perry v. New Orleans, etc., R. Co., 55 Ala. 413, and innumerable authorities thereunder cited.

4. Same--Lack of Power to License Private Use of Portion of Street Interfering With Public Use.

"A municipal corporation has no power, without express legislative authority, to license a private individual to make a permanent use of any portion of a street for any private purpose that will interfere with the legitimate public use of the street for travel notwithstanding some space is left for the passage of the public." 19 R. C. L. 782, Municipal Corporations, sec. 87.

5. Same.

"The primary and paramount object in establishing and maintaining streets and highways is for the purpose of public travel, and the public and individuals cannot be rightfully deprived of such use, nor can the rights of the public therein be encroached upon by private individuals or corporations, even with the consent of the municipality." 13 R. C. L. 251, Highways, sec. 208.

6. Same--Right of Municipal Authorities to Remove Unauthorized Improvements Obstructing Streets.

Where it appears private citizens of a municipality have erected buildings and other improvements in the streets of a city or town for their own convenience and private use, and it further appears that said improvements were erected without permission from the governing body of said municipality and that said improvements so erected do incumber and obstruct free passage thereover by pedestrians or the public generally, held the municipal authorities of said city or town may remove the same at will and at the expense of the owners thereof.

7. Same -- Judgment Enjoining City Authorities From Interfering With Use of Portion of Street for Filling Station Purposes Reversed.

Record examined, and held, judgment of the trial court is reversed.

Appeal from District Court, Payne County; Charles C. Smith, Judge.

Injunction by Asa Lovell and others against the City of Stillwater et al. Judgment for plaintiffs, and defendants appeal. Reversed.

J. W. Reece, for plaintiffs in error.

Wilcox & Swank, for defendants in error.

CULLISON, J.

¶1 This is an injunctional proceeding wherein plaintiffs instituted this action in the district court of Payne county, Okla., praying an injunction against defendants herein to prohibit defendants from interfering with the use and operation of certain improvements constructed and maintained by plaintiffs as by the record shown.

¶2 Plaintiffs for their cause of action against defendants allege and state:

"Petition.

"Comes now the plaintiffs and for cause of action against the defendants and each of them allege and state;

"1. That the plaintiffs are residents and taxpayers of the city of Stillwater, Payne county, state of Oklahoma, and are the owners of certain real property in said city described as the west 50 feet of lots 9, 10, 11, and 12 of block 29, original town, now city of Stillwater, Payne county, state of Oklahoma; and in addition thereto an easement for right of way.

"2. That the defendant, city of Stillwater, is a municipal corporation and city of the first class under the Constitution and laws of the state of Oklahoma. The defendant, G. M. Thompson, is and was at the times hereinafter stated the duly elected, qualified and acting mayor ex-officio police judge of said city; the defendant, O. W. Sollers, is the duly appointed, qualified, and acting chief of police.

"3. That prior to May 11, 1927, the plaintiffs negotiated with one George W. Allen to purchase the real estate above described on which there was then located a store building with apartments on the second floor thereof, with the intention of altering said building and to convert the lower floor thereof into a modern filling station, together with garage and offices, with the idea of using the same as a filling station and central location of their business which is the wholesale and retail vending of gasoline and other oil products; that accordingly the defendants caused a plan of said proposed building and the proportions thereof to be prepared by one F. W. Redlick, an architect, together with specifications therefor, and said plan and said specifications were submitted to the then board of commissioners of the city of Stillwater, Okla., for their approval with the idea of obtaining a permit to construct said building according to said plans and specifications; that the plans and specifications aforesaid definitely located the gasoline pumps, the driveway and the location of the sidewalk; that the said commissioners, being then in regular session on the 10th day of May, 1927, and having under consideration the plans and specifications aforesaid granted the permit to the defendants to construct said improvement in the manner specified in the said plans and specifications and permitted the defendants to locate the sidewalk at the place designated on said plans. A true and correct copy of said plan is hereto attached, marked Exhibit 'A' and made a part of this petition. That a true and correct copy of said building permit is hereto attached, marked Exhibit 'B' and made a part of this petition.

"4. That said defendants, having obtained said permit and in consideration thereof, purchased said property and constructed the building and improvements in strict conformity with the plans and specifications for which said permit was granted and located the said sidewalk at the place designated in said plans, and expended a sum in excess of $ 11,000 therefor.

"5. That said improvements were completed during the month of September, 1927, and that since that time up to the 21st day of December, 1929, the plaintiffs have used the same as designated in said plans and specifications, at which time the defendant, O. W. Sollers, acting under the direction of G. W. Thompson, mayor, went upon the property of the plaintiff and attempted to relocate the sidewalk on the south side of plaintiff's property and painted two lines along the entire width of said property, said lines being four feet apart, the north line about 12 inches from the south property line, and notified the plaintiff that if they attempted to drive a car or to permit any of their customers to drive a car on or over said space, they would immediately be arrested; that later one of the plaintiffs, Asa Lovell, drove a car over and across said space and he was immediately arrested and taken to the office of the mayor of said city and charged with obstructing the sidewalk, and later was tried and convicted of said charge, and the defendants were then notified by said mayor and said chief of police that they or their customers would immediately be arrested if said space was again obstructed.

"6. Plaintiffs allege further that by reason of the acts of the defendants as aforesaid, the plaintiffs have been deprived of the use of their property, without due process of law; and that if the space designated as a sidewalk by said chief of police is permanently established as a sidewalk, the same would destroy the value of plaintiffs' business and the value of their property, and that they have no plain, adequate and complete remedy at law.

"Wherefore, premises considered, plaintiffs pray the court that the defendant, city of Stillwater, and the said mayor and said chief of police, their officers, agents, servants and employees, be enjoined and restrained from arresting the plaintiffs or any of their customers for obstructing the space designated by said officers as a sidewalk as aforesaid, and for such other relief as may be just and equitable, and for their costs herein expended."

¶3 December 26, 1929, the court issued a temporary restraining order and set the 10th day of January, 1930, as the day for hearing said order.

¶4 January 25, 1930, defendants filed a demurrer to plaintiffs' petition in words as follows, to wit:

"Demurrer.

"Now come the defendants in the above action and demur to the petition of plaintiffs herein on the following grounds:

"First: That said petition does not state facts sufficient to constitute a cause of action against defendants.

"Second: That said petition shows on its face that plaintiffs

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