Costello v. State

• Decision Date: 18 December 1895
• Parties: COSTELLO v. STATE. STATHAKIS v. SAME. PAPALEXANDRAKIS v. SAME.
• Court: Alabama Supreme Court

18 So. 820

108 Ala. 45

COSTELLO v. STATE.

STATHAKIS v. SAME.

PAPALEXANDRAKIS v. SAME.

Supreme Court of Alabama

December 18, 1895

Appeal from criminal court, Jefferson county; S.E. Greene, Judge.

James Costello, James Stathakis, and Peter Papalexandrakis were convicted of maintaining a public nuisance, and appeal. Affirmed.

These three cases involve the same question, and contain substantially the same facts, and were submitted together on appeal. Each of the appellants was tried and convicted under a complaint charging them with the offense of maintaining a public nuisance in the city of Birmingham. The prosecution was commenced before the judge of the police court of Birmingham, and, upon judgment of conviction being rendered upon each of the defendants, they each prosecuted an appeal to the criminal court of Jefferson county. The facts of the case, as shown by the evidence for the state, are sufficiently stated in the opinion. It was shown by each of the defendants that they had been granted a license in the city of Birmingham to occupy the portions of the highway which were used by them for fruit stands. Upon the introduction of all the evidence, the court, at the request of the state, instructed the jury in writing as follows "Gentlemen of the jury, if you believe the evidence beyond a reasonable doubt, you should find the defendants guilty." To the giving of this charge in each of the cases, each of the defendants separately excepted.

Walker Porter & Walker and J. J. Altman, for appellants.

Wm. C Fitts, Atty. Gen., for the State.

HEAD J.

These are three several cases, being criminal prosecutions, one against each of the appellants, for erecting or maintaining a public nuisance in the city of Birmingham. The charge against each, as set forth in the complaint, is that in a part of a designated public highway, within the corporate limits of said city, in the county of Jefferson, state of Alabama, he did, knowingly, intentionally, and unlawfully, erect, keep or maintain, for the purpose of doing business, a certain fruit stand, by reason whereof said highway, or a portion thereof, was obstructed and made less convenient, to the great damage and common nuisance, not only of all the inhabitants of said city, but to all other goods citizens and said state there passing and repassing and laboring. The undisputed evidence showed that Costello, for a year next before the commencement of the prosecution, kept and maintained a fruit stand, constructed of timber and lumber, so arranged as to display fruits, etc., for the purpose of doing business. It was situated on the inside portion of the sidewalk on Twentieth street, in said city, between First and Morris avenues, and next to, and along by the side of, a four-story brick storehouse. It was 31 feet long, 3 feet and 8 inches wide, being 2 feet high at the lower or outer edge, and rising, as it receded in width towards the storehouse, to a height of 4 feet next to and adjoining the storehouse; the width at the top, and next to the storehouse, being 1 foot. Prior to the erection of this stand, there was in the sidewalk, next to the building, an open way, leading to a room or cellar under the building; and in October, 1894, Costello covered this opening, and erected the fruit stand thereon, the stand occupying only the surface space occupied by the cover to the opening. The opening was made by the owners of the storehouse in the year 1887, and remained there until covered by Costello; the city authorities never having objected to it. The cellar or room to which it afforded entrance has not been used since the opening was covered. Costello kept the stand under a lease from the owners of the building. By city ordinance, a license tax of $20 per annum was imposed upon the business of keeping a fruit stand on a sidewalk of the city, which license had been taken out and tax paid by appellants, for the time covered by the complaints. Birmingham, during the time in question, was a city of 26,500 population; and Twentieth street was, and had been for many years, a public street or highway therein; and the place where the stand in question was kept "is in the most populous portion of a part of the business portion of said city, and said 20th street and said sidewalk are as much traveled as any other street in said city, and said sidewalk is a part of said highway." The sidewalks were 15 feet wide. So far as the legal questions presented by the records are concerned, there is no material difference in the facts of the several cases. There are slight differences in the dimensions of the stands. Two are for fruits, and one for candies and confections. They are located at different places in the city, but all on important and commonly used public sidewalks of the city; and they take up, practically, the same sidewalk space, and in the same manner. There was no cellar opening in the two other cases.

Here then, we have, in either case, the undisputed fact that, at least, 3 1/2 feet of the 15-feet width of sidewalk (nearly one-fourth), and nearly 30 feet of its length, were exclusively and permanently appropriated by the defendant to his private uses, to the entire deprivation of the public of the space so appropriated; and to this must be added, as a necessary legal inference from the fact that these stands were used for carrying on the business of selling fruits, etc., the permanent occupation of the sidewalk by the person or persons engaged in making the sales; and by the standing thereon, from time to time, day by day, of customers trading at such stands. The trial court was of opinion that these facts, of themselves, constituted, as matter of law, public nuisances, indictable as such, without requiring the prosecutor (as then and now contended for by appellants' counsel) to go further and prove that such erections actually incommoded the general public. It seems to us that the statement of the case necessarily precludes any other conclusion. It is not and cannot be denied that the public has the right to the use of the entire sidewalk for the purpose of passage and other public purposes; that the appellants have, without lawful authority, permanently appropriated, to their own exclusive use and enjoyment, material portions of the sidewalks in question, thereby wholly depriving the public of the use of such portions. An unlawful deprivation of a substantial legal right necessarily implies injury to the party so deprived; and it is so with reference to the right of the public to the free use of the streets. When it is established that a party has, permanently and unlawfully, obstructed a material portion of a public street which the public have a right to use, and, but for the obstruction, would use, for public purposes, it is thereby concluded that the public have been injured and put to inconvenience by reason of the obstruction, and this constitutes, in law, an indictable nuisance. Mr. Freeman tersely states the law, as extracted from the numerous authorities he cites, in his extended annotation of Callanan v. Gilman (N. Y. App.) 1 Am. St. Rep. 840, (14 N.E. 264), as follows: "The public have a right to passage over a street to its utmost extent, unobstructed by any impediments. Any unauthorized obstruction, which necessarily impedes the lawful use of a highway, is a public nuisance at common law." And Judge Ruffin, a distinguished jurist, said, in State v. Edens, 85 N.C. 526: "Any permanent obstruction to a public highway, such as would be caused by the erection of a fence or building thereon, is, of itself, a nuisance, though it should not operate as an actual obstacle to travel, or work a positive inconvenience to any one. It is an encroachment upon a public right, and, as such, is not permitted by the law to be done with impunity." Confusion of ideas upon this subject grows out of the failure to properly distinguish between street obstructions which are per se unlawful, and capable of working public detriment, and those which are not, in themselves, unlawful, but may be so, by virtue of circumstances necessary to be shown in evidence in order to establish the criminality of the act. There are classes...