Cummings v. Lobsitz

• Decision Date: 25 August 1914
• Docket Number: Case Number: 2674
• Citation: 142 P. 993,1914 OK 382,42 Okla. 704
• Court: Oklahoma Supreme Court
• Parties: CUMMINGS v. LOBSITZ et al.

1914 OK 382

142 P. 993

42 Okla. 704

CUMMINGS v. LOBSITZ et al.

Case Number: 2674

Supreme Court of Oklahoma

Decided: August 25, 1914

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Powers--Abatement of Nuisance. At common law a municipal corporation has the power to cause the abatement of public nuisances, and if it cannot otherwise ebeabated, to destroy the thing which constitutes the nuisance.

2. SAME. Not only has a municipal corporation the power, under the common law, to abate a public nuisance, but chapter 71, Comp. Laws 1909 (ch. 51, Rev. Laws l910), 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.

3. SAME--Action for Damages--Sufficiency of Evidence. Evidence examined, and held to be sufficient to establish that the building was in fact a nuisance.

4. SAME--Enforcement of Void Resolution--Liability. 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.

5. SAME--Acts of Officers--Liability. 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 act 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.

6. APPEAL AND ERROR--General Exception--Instructions. 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 Okla. 17, 97 P. 565.

H. A. Johnson, for plaintiff in error.

Chas. R. Bostick and H. E. St. Clair, for defendants in error.

RITTENHOUSE, C.

¶1 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, sec. 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 71. Comp. Laws 1909 (ch. 51, Rev. Laws 1910), construed in Ex parte Jones, 4 Okla. Crim. 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 71 (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. Sarlls, 129 Ind. 201, 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, secs. 349, 352. The question as to whether the frame structure was in 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 was removed; that it had caught fire several times just prior to the date of its removal; that the building was on one of the principal business streets, and was leaning about eighteen inches over the sidewalk; that the glass windows were out, and the doors were standing open; the front door twisted in such a manner that it could not be shut and the back door was off its hinges; that the floor was uneven and that the boards in the upper part of the building were decaying and in bad shape; and that the side wall against the adjoining building had decayed from dampness. These facts were testified to by several witnesses and were not denied, and the jury found, we think correctly, that the building was in fact a nuisance, and the city was justified in summarily removing the same. The next contention is that the introduction of the resolution in evidence was prejudicial to the...