Duncan Elec. & Ice Co. v. City of Duncan
| Decision Date | 31 July 1917 |
| Docket Number | 9117. |
| Citation | 166 P. 1048,64 Okla. 211,1917 OK 398 |
| Parties | DUNCAN ELECTRIC & ICE CO. v. CITY OF DUNCAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Under article 11 of chapter 10, Rev. Laws 1910, a city may prevent obstructions of the streets, provide for the removal of such obstructions, and prevent and abate nuisances.
Under article 1 of chapter 51, Rev. Laws 1910, a "nuisance" may consist of an act which unlawfully interferes with, obstructs, or tends to obstruct any public park, square, street, or highway.
A grant of power to a municipality to declare what shall constitute a nuisance and to remove same, while it does not empower the municipality to declare a thing a nuisance which is clearly not one, does empower it to declare anything a nuisance which by reason of its location or use, or local conditions and surroundings, may or does become a serious obstruction to the use of the streets for public purposes, or is a nuisance within the common-law or statutory definition.
Where an obstruction of the public streets may or may not be a nuisance, depending upon its location or use, and the conditions existing in the municipality, thus requiring judgment and discretion in determining the matter, a determination of the question by a municipality having power to declare what shall be a nuisance, acting in good faith and in a reasonable manner, is conclusive upon the courts.
Error to District Court, Stevens County; Cham Jones, Judge.
Action by the Duncan Electric & Ice Company against the City of Duncan, a municipal corporation. Judgment for defendant, and plaintiff brings error. Affirmed.
Bond & Kolb, of Duncan, and John M. Young and Charles Mitscrich both of Lawton, for plaintiff in error.
Bond Melton & Melton, of Chickasha, and J. M. Sandlin, of Duncan for defendant in error.
This is an action, brought by plaintiff in error in the district court of Stevens county, for an injunction to restrain the defendant in error from removing certain electric light posts from the streets of the city of Duncan. The trial court denied the application for an injunction. Plaintiff in error brings the case here.
The plaintiff in error, under a franchise granted in 1902 by the city of Duncan, was authorized to erect poles, string wires, and erect other necessary electric appliances along the streets of the city. This franchise provided that the poles should be not less than 20 feet above ground when set. By section 6 of this franchise the city contracted with the light company for street lighting for a period of 10 years. In 1911 a new contract for street lighting, for a period of 5 years, was made between the city and the grantee of the franchise, whereby, in lieu of the arc lamps provided for under section 6 of the franchise, there was to be installed a system of incandescent street lights to be erected on ornamental iron lamp posts 16 feet in length. Pursuant to this agreement, the light company installed iron posts on which it strung its wires, equipped the same with the necessary lights and fixtures, and furnished light for the streets during the term of the contract. During the year 1916 the city voted bonds and created a fund for the purpose of installing and equipping a municipal light plant for the purpose of lighting the streets. On May 1, 1917, after notice from the city, the light company discontinued these lights, but the iron posts and wires were left in place. In the erection of the municipal plant, the city desired to set its posts in the space occupied by these iron posts, and, by its council, passed a resolution declaring the posts of the light company a nuisance, and directed the same to be removed. The light company, after notice, refused to remove them. The city thereupon proceeded to remove the same.
Plaintiff in error contends that it had the right under the original franchise, after the expiration of the contract of February, 1911, to maintain these posts and to place its secondary wires thereon for the purpose of furnishing electric current for commercial purposes to the consumers throughout the city; that the city had no power to declare the posts a nuisance, or to remove them from the streets. With this contention we are unable to agree. These posts were not erected under the original franchise; neither did they conform to the requirements of that franchise. They were erected under the contract of February, 1911, providing for iron posts entirely different in length and character from the poles required by the terms of the franchise. This contract was for a term of 5 years, and in lieu of section 6 of the franchise which provided for arc lamps for lighting the streets.
It was contended on the part of the city that these posts are unsafe and unfit to carry the secondary wires to be used for furnishing current for commercial purposes. This contention was decided in favor of the city by the trial court upon a consideration of the evidence.
That cities have the power to declare and abate nuisances in this state is no longer an open question. Under section 589, Rev Laws 1910, the council may prohibit and prevent all encroachments upon the streets of the city, and may provide for the removal of all obstructions at the expense of the persons placing the same there. Section 594 authorizes the city council to prevent and abate nuisances....
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