Grossman v. City of Oakland

• Decision Date: 05 August 1895
• Citation: 41 P. 5,30 Or. 478
• Parties: GROSSMAN v. CITY OF OAKLAND.
• Court: Oregon Supreme Court

41 P. 5

30 Or. 478

GROSSMAN v. CITY OF OAKLAND.

Supreme Court of Oregon

August 5, 1895

Appeal from circuit court, Douglas county; J.C. Fullerton, Judge.

S Grossman was convicted of the violation of a city ordinance and from a judgment of the circuit court dismissing his writ of review he appeals. Reversed.

W.D Fenton, for appellant.

J.W. Hamilton, for respondent.

BEAN, C.J.

On June 12, 1894, the petitioner was arrested on a warrant of the municipal court of the city of Oakland, issued upon a complaint charging him with having "committed a public nuisance within the platted portion of said city by driving stakes as a part of the fence which he was then and there building along the side of the O. & C. Railroad, otherwise known as the Southern Pacific Railroad, contrary to Ordinance No. 58 of the city," and on a plea of guilty was fined $25. He thereupon sued out a writ of review to have the judgment of the recorder's court annulled and set aside on the ground that the ordinance was void. The writ being dismissed by the circuit court, he brings this appeal.

The ordinance in question was passed by the Oakland council June 11, 1894, for the declared purpose, as shown by the minutes of the meeting, of "prohibiting the Southern Pacific Railroad Company from building a fence along their railroad within the corporate limits of the city," and provides "That it shall be unlawful for any person, association or corporation owning, operating or controlling any railroad within the corporate limits of the city of Oakland, Oregon or any person or persons in the employment of any such person, association or corporation, or any other person whatever, to build, construct or maintain any fence or other obstruction whatever along the side of any such railroad within the portion of the corporate limits of said city of Oakland that is laid out in lots and blocks, and every such fence and obstruction is hereby declared a nuisance within and against the ordinance of said city of Oakland." In our opinion, this ordinance cannot be sustained as a legitimate exercise of municipal power. The charter of the city confers upon it the power to prevent and restrain nuisances, and to "declare what shall constitute a nuisance"; but this does not authorize it to declare a particular use of property a nuisance, unless such use comes within the common-law or statutory idea of a nuisance. 2 Wood, Nuis. (3d Ed.) 977; Yates v. Milwaukee, 10 Wall. 497; Village of Des Plaines v. Poyer (Ill.Sup.) 14 N.E. 677; Quintini v. City of Bay St Louis, 64 Miss. 483, 1 So. 625; Chicago, R.I. & P.R. Co. v. City of Joliet, 79 Ill. 44; Hutton v. City of Camden, 39 N.J.Law, 122. By this provision of the charter the city is clothed with authority to declare by general ordinance under what circumstances and conditions certain specified acts or things injurious to the health or dangerous to the public are to constitute and be deemed nuisances, leaving the question of fact open...