Davis et als. v. Speagg.
| Decision Date | 23 September 1913 |
| Citation | 72 W.Va. 672 |
| Parties | Davis et als. v. Speagg. |
| Court | West Virginia Supreme Court |
A private awning erected over a public street without lawful authority is a public nuisance, whether it materially interferes with public travel or not. (p. G73).
2. Nuisance Right to Enjoin Parties.
A private individual may maintain a suit to enjoin a public nuisance only when his rights are injuriously affected in a special manner, different from the public in general, (p. 674).
3. Municipal Corporations Streets Right of Abutting Owners.
In addition to his right to use the highway in common with the general public, an abutting owner has also a special right of access thereto and to light, air and view therefrom. These are property rights, and eyist regardless of the ownership of the fee in the highway, (p. 674).
4. Same Powers Control of Streets.
The council of a city, unauthorized by its charter to do so, acts ultra vires when it attempts to permit the permanent occupation of any portion of its public streets for private purposes, (p. 675).
5. Action Nuisance Action to Enjoin Defenses Maintenance of Similar Nuisance.
In a suit to abate a nuisance it is no defense that plaintiff maintains a similar nuisance, or that he was actuated by spite or ill-will to bring his suit. The court can not inquire into plaintiff's motives for suing, (p. 676).
6. Nuisance Public Nuisance-Right to Enjoin.
Before equity will abate a public nuisance at the suit of a private individual it must appear, not only that plaintiff is specially damaged by it in a manner different from the general public, but also that his injury is serious, affecting the substance and value of his property, (p. 676).
7. Municipal Corporations Obstruction of Street Action to En-
join Injury Sufficiency of Evidence.
A case in which relief is denied because of failure to prove injury
Error to Circuit Court, Marshall County.
Bill by E. S. Davis and others against J. I. Spragg. Decree for defendant, and plaintiffs bring error.
Affirmed.
D. B. Evans, Caldwell & Caldwell and McCamic & Clarke, for appellants.
T. H. Shannon and Noyes & blitz, for appellee.
The plaintiffs, E. S. Davis and E. S. Bomine, and the defendant, J. I. Spragg, are the several owners of three adjoining buildings fronting on Main Street in the town of Cameron. The fronts of the buildings are flush with the street. Defendant erected a porch or wooden awning in front of his building twenty-two feet long and fifteen feet above the street, extending to the outer edge of the sidewalk, a distance of about nine feet, and supported by two iron posts about four inches in diameter, resting on the sidewalk near the curb line. Plaintiffs brought this suit to enjoin its maintenance, averring that it is a public nuisance, and that they are specially damaged by it. On a full hearing of the case on bill, answer, general replication and numerous depositions, the chancellor dissolved the preliminary injunction and dismissed plaintiffs' bill, and they have appealed.
It is alleged in the bill that, if the porch is permitted to remain, it will not only obstruct public travel on the streets and constitute a public nuisance, but that it will cause irreparable injury to plaintiffs; that it will obstruct the light and air to their buildings and will greatly depreciate their rental and actual value; that it will cut off the prospect, or view, from the buildings out upon the street; also that the posts or pillars supporting the porch will materially interfere with the right of access to the Romine property from the public street. All these averments are denied, and much evidence was taken on the question whether or not the structure is in fact a public nuisance. But it is admitted that the porch extends out over the street line about nine feet and is supported by four-inch iron posts resting on the sidewalk. This of itself is enough to show that it is a public nuisance. Amy unlawful encroachment upon or over a public highway, whether actually interfering with travel by the public or not, is a purpresture and a nuisance per se, and the jury are not at liberty to determine whether such encroachment amounts to a public nuisance by the measure of inconvenience the public may suffer from it. 2 Elliott on Roads and Streets, Sec. 828. This rule is abundantly supported by adjudicated cases. For instance, an awning over the sidewalk, Hibbard & Co. v. Chicago, 173 111. 91; a bay window extending eighteen inches into the street, The People v. Harris, 203 I11. 272; a bay window sixteen feet above the sidewalk extending three feet and four inches over the street line, Reimer's Appeal, 100 Pa. St. 183; pillars in front of a building, extending twentytwo inches onto the sidewalk, Bank v. Tyson, 133 Ala. 459, 59 L. R. A. 399; and Biscof v. Bank, 75 JSTeb. 838, 106 X. W. 996, have all been held to be public nuisances. But neither the public, nor its trustees, the municipal officers, are complaining here; they are not before the court.
What then are the rights of these plaintiffs in the premises? Before a private individual can enjoin a public nuisance it must appear that his rights are injuriously affected in a manner different from the public in general.
2 Elliott on Roads & Streets, Sec. 850a. Keystone Bridge Co. v. Summers, 13 W. Va. 476; Talboti v. King, 32 W. Va. 6.
Plaintiffs, being the owners of property abutting on the highway, have an easement therein not possessed by the public in common. In addition to their right of passage over the highway, which they hold in common with all other citizens, they have a special right of access to their property from the highway, and the right to the light and air from it. These rights exist independent of the ownership of the fee in the highway. Barrett v. Johnson, 15 N. J. Eq. 481; Dill v. Board of Ed. Camden, 47 N J. Eq. 422.
"Owners of land abutting upon public streets, even in case the fee of the street is in the municipality, have an easement in the streets, not only for ingress and egress, but also for the uninterrupted passage of light and air." Jones on Easements, section 489.
The unlawful occupation of any portion of the public highway in such manner as to materially interfere with the access of an abutting owner to his property or his easement of light and air from the highway, is an unwarranted invasion of his property right, and constitutes a private, as well as a public, nuisance. 2 Elliott (3d ed.), section 896.
"A structure connecting two buildings on opposite sides of a street, built so far above the street as not to interfere with traffic thereon, is a nuisance as to adjacent property owners, whose light it obstructs." Townsend v. Epstein, (Md.) 49 Atl. 629; and Field v. Barling, 149 111. 556, a similar case.
The council of the town of Cameron acted ultra vires when it passed an ordinance permitting defendant to erect his porch over the sidewalk. Chapter 47 of the Code is the town's charter, and it vests no authority in the council to authorize the erection of anything on or over its streets for even a public purpose. Having paramount control of the public highway, the legislature could, no doubt, confer such authority upon a municipality, Wormser v. Brown, 149 N. Y. 163, but in the present case, it has not seen fit to do so. Moreover, the occupation of the highway in this instance is for a purely private purpose. "Even where a city is given exclusive power over its streets, such power must be exercised for the good of the general public, and a city can not authorize obstructions in its streets for merely private purposes/' 2 Elliott, section 836; Townsend v. Epstein, 93 Md. 537. 49 Atl. 629; Pennsylvania Co. v. Chicago, 181 111. 289; Pettis v. Johnson, 56 Ind. 139; The People v. Harris, 203 I11. 272; Reimers Appeal, 100 Pa. St. 182.
But the right of easement of access and of light and air from the public street is so far regarded as the private property of an abutting owner, that the legislature itself has not the right to deprive the owner of it without just compensation, even when taken or injured for the public good; and certainly it would not have the right to so deprive him of it for purely private purposes. 2 Elliott, section 882, and numerous cases cited in note; Lahr v. Met, El R. R. Co., 104 X. Y. 268; Story v. N. Y. &c. R. R. Co., 90 X. Y. 122.
It was no defense to plaintiffs suit that they were, at the time of bringing it, maintaining awnings or verandas overhanging the street in front of their properties. Defendant, of course, could not plead plaintiffs' wrong in justification of his own. Each alleged wrong must stand and be tried by itself. Bowman v. Humphries, 132 Iowa 234, 109 1ST. \Y. 714; Robinson v. Baugh, 31 Mich. 290; Schmidt v. Blaul, 66 Md. 141, 6 Atl. 669; Bank v. Tyson, 133 Ala. 459, 59 L. E. A. 399.
That plaintiffs may have been influenced by motives of personal spite and ill-will to bring their suits is no defense. The result of the suit must depend upon plaintiffs' legal right, which is not affected by their motives. The court has no right to inquire into their motives in bringing the suit. Koblegard v. Hale, 60 W. va. 337.
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