Davis v. Spragg

• Citation: 79 S.E. 652,72 W. Va. 672
• Court: Supreme Court of West Virginia
• Decision Date: 23 September 1913
• Parties: DAVIS et al. v. SPRAGG.

79 S.E. 652
(72 W. Va. 672)

DAVIS et al.
v.
SPRAGG.

Supreme Court of Appeals of West Virginia.

Sept. 23, 1913.

(Syllabus by the Court.)

1. Municipal Corporations (§ 667*) — Obstruction of Street—Awning — "Public Nuisance."

A private awning erected over a public street without lawful authority is a public nuisance whether it materially interferes with public travel or not.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1443, 1494-1490; Dec. Dig. § 667.*

For other definitions, see Words and Phrases, vol. 6, pp. 5799-5804.]

2. Nuisance (§ 72*)—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.

[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 164-169; Dec. Dig. § 72.*]

3. Municipal Corporations (f 669*) — 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 exist regardless of the ownership of the fee in the highway.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1445; Dec. Dig. § 669.*]

4. Municipal Corporations (§§ 680, 681*)— 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.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1459-1406; Dec. Dig. §§ 680, 681.*]

5. Action (§ 7*)—Nuisance (§ 75*)—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 cannot inquire into plaintiff's motives for suing.

[Ed. Note.—For other cases, see Action, Cent. Dig. § 8; Dec. Dig. § 7;* Nuisance, Cent. Dig. §§ 176-184; Dec. Dig. § 75.*]

6. Nuisance (§ 72*) — 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.

[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 164-169; Dec. Dig. § 72.*]

7. Municipal Corporations (§ 697*) — Obstruction of Street—Action to Enjoin— Injury—Sufficiency of Evidence.

A case in which relief is denied because of failure to prove injury.

[Ed. Note.—For other cases, see Municipal Corporations, Cent Dig. §§ 1502-1505; Dec. Dig. § 697.*]

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, of Moundsville, and Caldwell & Caldwell and McCamic & Clarke, all of Wheeling, for appellants.

T. H. Shanon, of Waynesburg, Pa., and Noyes & Ritz, of Wheeling, for appellee.

WILLIAMS, J. The plaintiffs E. S. Davis and E. S. Romine 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 22 feet long and 15 feet above the street, extending to the outer edge of the sidewalk, a distance of about 9 feet, and supported by two iron posts about 4 inches in diameter, resting on the sidewalk near the curb line. Plaintiffs brought this

[79 S.E. 653]

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 street 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 Routine 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. Any unlawful encroachment upon or over a public highway, whether actually interfering with travel by the public or not, is a pur-presture 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, § 828. This rule is abundantly supported by adjudicated cases. For instance, an awning over the sidewalk (Hibbard & Co. v. Chicago, 173 111. 91, 50 N. E. 256, 40 L. R. A. 621), a bay window extending 18 inches into the street (People v...