Dunn v. Town of Gallup, 3861.

• Decision Date: 19 February 1934
• Docket Number: No. 3861.,3861.
• Parties: DUNNv.TOWN OF GALLUP et al.
• Court: New Mexico Supreme Court

38 N.M. 197

29 P.2d 1053

DUNN

v.TOWN OF GALLUP et al.

No. 3861.

Supreme Court of New Mexico.

Feb. 19, 1934.

Appeal from District Court, McKinley County; Otero, Judge.

Mandamus proceeding by John J. Dunn against the Town of Gallup and others. From judgment dismissing the writ, plaintiff appeals.

Affirmed.

To avoid possible misunderstanding or confusion, reviewing court of its own motion will amend title of mandamus proceeding.

H. W. Atkins, of Gallup, and W. A. Keleher and T. E. Jones, both of Albuquerque, for appellant.

H. C. Denny and H. S. Glascock, both of Gallup, for appellees.

WATSON, Chief Justice.

On the petition of John J. Dunn, an alternative writ of mandamus issued from the district court of McKinley county, directed to the town of Gallup and officials thereof, commanding them to cause the removal of specified curb gasoline pumps as street obstructions, or to show cause. An answer raised issues of fact and of law. Upon findings and conclusions, final judgment was entered dismissing the writ. The plaintiff has appealed.

[1][2] From the entitling of the petition for the alternative writ, it would appear as if the state were the petitioning party, moved by the relation of Mr. Dunn. The cause comes to us so entitled. The record fails to disclose that the state's law officer was consulted or consented to any litigation in the state's name or interest. Under our statute and customary procedure, we see no occasion for originally employing or now retaining the state's name. To avoid possible misunderstanding or confusion, this court, of its own motion, now amends the title. The relator, Dunn, will henceforth appear to be, as he is in fact, the plaintiff and appellant.

In the town of Gallup abutting owners have erected in the streets some eighteen pumps which they employ in the vending of gasoline for the operation of vehicles. All are on the curb line of the sidewalks, distant, except in one or two cases, ten feet from the property line. This curb line is also in use “for light posts and other legitimate purposes.” Incidental, of course, to the use of the pumps, a space in the street proper is occupied by each car being serviced.

When the alternative writ was issued, ordinances of the town prohibited such use of the streets, but they were repealed before the trial. Appellant makes no point of this except to point out that the record discloses no ordinance permitting the use complained of, and that it was conceded that such use has the tacit consent and approval of the municipal authorities. We consider, therefore, for purposes of this appeal, that the situation is that the encroachments exist by mere sufferance.

Appellant has suffered no special or peculiar injury or damage, nor any impairment of right, and has no beneficial interest in the subject-matter of the action, except as a citizen.

The learned trial judge, considering the evidence taken by a referee, specially found that the space occupied by the pumps would not be available to pedestrian use if the pumps were not there; that there remains ample room on the sidewalks; that the space in the streets occupied by cars having their tanks filled is that devoted to “parking for any and all purposes” and not to “traffic”; and that the obstruction is “so slight as to be of no consequence.”

The judgment was put upon conclusions that the condition complained of is not detrimental to users of the streets; that the several encroachments are not nuisances; that appellant has no special interest entitling him to sue; that the town board has a discretion with respect to slight encroachments not detrimental to the public; and that the court has a discretion in mandamus.

Appellant's attack upon this decision is directed first and mainly at the conclusions of law. He invokes the doctrine, referred to by some as “iron clad,” that the streets “from side to side and end to end” belong to the public; that a city board can do or enact nothing to impair this right or limit the public use without express legislative authority; and that the slightest private encroachment of a permanent nature is a nuisance per se. This being so, he urges, and the regulation of street use and traffic and the abatement of nuisances being committed to the city board, there exists a clear legal duty to cause the removal of these pumps. Since this duty is not met by regulation, but calls for removal in every instance, it is ministerial, he concludes, and its performance compellable by mandamus.

The first thing that strikes one is that this doctrine, carried to the length above stated, involves serious consequences. Probably no municipal authority in this or any other state has ever performed, or is now performing, its clear legal duty, as appellant defines it. Through mistake or otherwise, there no doubt exist many technical purprestures, which appellant would denominate nuisances per se, not in any substantial way obstructing the public use of the streets, but of great consequence to the abutters who have created and are using them. No decision of ours is likely to cure this evil, if it be an evil. City boards will not be thus aroused to a higher sense of municipal duty, as to a crusade. The general condition will remain as it is, with the added evil of spite suits.

[3] Appellant's fundamental proposition is that any private use of a street amounting to a permanent physical encroachment is a nuisance per se. He is able to cite eminent authority to this sweeping contention. Isolated statements by text-writers support it. Much judicial statement is also available. It is our impression, however, that in its full import it is generally obiter, due to the laying of an unnecessarily broad foundation of principle for the particular decision called for or rule laid down.

On the other hand, the proposition has been denied frequently. Judge McQuillin puts the question thus: “Is an encroachment which is not an obstruction a nuisance, and may a municipality permit and grant the use of a street for a private purpose where it will amount merely to an encroachment and not constitute an obstruction or at least not a material obstruction?” “Municipal Corporations” (2d Ed.) § 1438.

Concerning it he says there is much conflict in the decisions. It is not our purpose to review the authorities generally, nor to pursue the question further than necessary to disposition of this appeal.

Most of the cases brought to our attention involve prosecutions for nuisances or an assertion in some manner of public authority. There is an important difference in principle, pointed out by appellees and impressing us, between such cases and that at bar.

One view of the matter is well stated by the Idaho Supreme Court in a case involving a curb pump. The court said: “The authorities dealing with the question raised by the demurrer are conflicting, but we are of the opinion that the sounder rule, and the rule supported by the better reasoned cases, is to the effect that the streets, from side to side and end to end, belong to the public, and are held by the municipality in trust for the use of the public. The city is therefore without authority, in the absence of a legislative enactment expressly permitting it, to grant a private person or corporation a permit to erect or maintain a permanent obstruction in a public street or thoroughfare for a purely private purpose; we have no such statute in this state. It follows that any one obtaining a permit from the city, for the private use of a public street, as in this case, takes the same with notice that it is subject to revocation at the will of the city, and, indeed in this view, it matters not whether the use is made in accordance...