Cummings v. Lobsitz
| Decision Date | 25 August 1914 |
| Docket Number | 2674 |
| Citation | 142 P. 993,42 Okla. 704,1914 OK 382 |
| Parties | CUMMINGS v. LOBSITZ |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
At common law a municipal corporation has the power to cause the abatement of public nuisances, and if it cannot otherwise be abated, to destroy the thing which constitutes the nuisance.
Not only has a municipal corporation the power, under the common law, to abate a public nuisance, but chapter 7, Comp. Laws 1909, (chapter 51, Rev. Laws 1910), gives the municipal corporation full power to abate public nuisances, and when it becomes necessary, it may remove or destroy the building which constitutes the nuisance, even though the nuisance consists in the building being in such a condition that it endangers the public safety or the safety of adjacent property.
Evidence examined, and held to be sufficient to establish that the building was in fact a nuisance.
No liability is created against a municipal corporation by acts of its officers, done under an unconstitutional or void resolution enacted in the exercise of governmental powers and the fact that the council passed, and the street commissioner enforced, such void resolution does not make the city liable.
Where a street commissioner of a city of the first class removes a frame building which constitutes a public nuisance, he does not do so as the agent or representative of the municipality but the acts of such officer is in the interest of the public generally and for public purposes in the enforcement of the police regulations and the abatement and removal of the frame building in the instant case by such street commissioner was an act which was essentially governmental in its character and the municipality is immune from liability for the act of such officer in abating such nuisance.
A general exception to a charge of the court, containing a great many distinct instructions, some of which are unobjectionable, is not available as error. Farquhar & Co. v. Sherman et al., 22 Okl. 17, 97 P. 565.
Commissioners' Opinion, Division No. 1. Error from District Court, Noble County; W.M. Bowles, Judge.
Action by James J. Cummings against James Lobsitz and the City of Perry, a municipal corporation. Judgment for defendants, and plaintiff brings error. Affirmed.
In the year 1909 James J. Cummings, plaintiff in error, who was plaintiff below, owned a frame building on lot 11 in block B in the city of Perry, Okl., and during the same year the city of Perry, a municipal corporation, removed said building. On February 16, 1910, the plaintiff instituted suit against the city of Perry, a municipal corporation, and James Lobsitz, to recover $550 damages for the willful, unlawful, and malicious removal of said building. James Lobsitz answered by general denial, and the city of Perry answered by general denial, and further alleged that the said building was located upon one of the principal business streets of the city of Perry, and that it was in an unsafe and dangerous condition, and by reason of such condition it was a public nuisance, and further answered that prior to the removal of said building the mayor and city council, after having fully investigated the condition of said building, passed a resolution declaring said building to be in an unsafe and dangerous condition, and provided in said resolution that if the owners, agents, or occupants of said building did not remove the same within 15 days of the service of such notice, the street commissioner would remove the same. Issues were joined, the court instructed the jury to return a verdict in favor of James Lobsitz, one of the defendants, and gave general instructions as between Cummings and the city of Perry. A general exception was saved to these instructions. The evidence was overwhelming that the building was in an unsafe and dangerous condition, and the jury found according to such evidence.
H.A. Johnson, of Perry, for plaintiff in error.
Chas R. Bostick, of Oklahoma City, and H.E. St. Clair, of Perry, for defendants in error.
RITTENHOUSE, C, (after stating the facts as above).
It is the duty of a municipal corporation to abate public nuisances, and it is well settled that a municipal corporation has, at common law, the power to cause the abatement of such nuisances, and if it cannot otherwise be abated, to destroy the thing which constitutes the nuisance. This authority has been given to municipal corporations from the earliest days of the common law down to the present time. Beach on Public Corporations, § 1022; Baumgartner v. Hasty, 100 Ind. 575, 50 Am.Rep. 830, and cases cited. Not only can municipal corporations summarily remove public nuisances under the common law, but chapter 7, Comp. Laws 1909 (chapter 51, Rev.Laws 1910), construed in Ex parte Jones, 4 Okl.Cr. 74, 109 P. 570, 31 L.R.A. (N.S.) 548, 140 Am.St.Rep. 655, enumerates what shall constitute a public nuisance, and provides that a nuisance shall consist in unlawfully doing an act or in omitting to perform a duty which either annoys, injures, or endangers the comfort, health, repose, and safety of the citizens, or unlawfully interferes with or tends to obstruct, or in any way renders unsafe and insecure, other persons in life or in the use of their property, and makes such nuisance public when it affects an entire community or any considerable number of persons, and provides that such nuisance may be abated by any public body or officer authorized by law or by individuals, and giving them the right to abate such nuisance by removal of the nuisance, or, if necessary, to destroy the thing which constitutes the nuisance. As has been said, under the common law, and also under chapter 7 (chapter 51), supra, a municipal corporation has full power to abate public nuisances, and when it becomes necessary it may remove or destroy the building which constitutes the nuisance, even though the nuisance consists in the building being in such condition that it endangers the public safety or the safety of adjacent property. First. Nat. Bank v. Sarlis, 129 Ind. 209, 28 N.E. 434, 13 L.R.A. 481, 28 Am.St.Rep. 185; Harvey v. De Woody, 18 Ark. 252; Joyce on Law of Nuisances,§§ 349, 352.
The question as to whether the frame structure was inn fact a nuisance was submitted to the jury, not upon the theory that the finding of the city council was a final adjudication of the fact that the building was a nuisance, but upon the broad question as to whether the building was in fact a nuisance. The testimony shows that the frame building had been in bad condition for more than two years prior to the time it...
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