Kennedy v. City of Fargo
| Decision Date | 09 September 1918 |
| Docket Number | 1915 |
| Court | North Dakota Supreme Court |
Cross actions to enjoin the obstructions of a public sidewalk, and to prohibit the city officials from interfering therewith.
Appeal from the District Court of Cass County, Honorable C. M Cooley, Judge.
City of Fargo appeals.
Reversed.
In case of Kennedy v. City of Fargo the order of the District Court reversed and the temporary injunction set aside and vacated; in case of City of Fargo v. Kennedy the order reversed and the injunction, issued and made permanent.
Spalding & Shure, for appellants.
Permanent obstructions to travel constitute nuisances, and are indictable offenses; or, the parties may be proceeded against in a suit to abate a nuisance, or the nuisance may be abated summarily.
No person has the right to do any act which renders the use of a street more hazardous or less secure than it was when finished and left by the municipal authorities. 4 Dill. Mun Corp. § 1725; Congreve v. Morgan (N.Y.) 72 Am Dec. 495; Bauermeister v. Markham (Ky.) 72 Am. St. Rep. 397.
The public right to the free and unobstructed use of public sidewalks in cities extends to the full width of the street and no person can rightfully obstruct or make the street more dangerous for the public use, than when left by the municipal authorities. Wheeler v. Ft. Dodge (Iowa) 108 N.W. 1057; Costello v. State, 108 Ala. 45, 1 Am. St. Rep. 348, 353 note; Atty. Gen. v. Brighton & H. Co-op. Supply Asso. L. R. 1 Ch. Div. 276; Windfall Mfg. Co. v. Patterson (Ind.) 62 Am. St. Rep. 532; Wylie v. Ellwood (Ill.) 23 Am. St. Rep. 673; 107 Am. St. Rep. 245 and 248, note; Reimer's Appeal, 100 Pa. 182, 45 Am. Rep. 373.
Anything unlawfully placed in a public street that tends to make its use more unsafe or insecure for the public is a nuisance. Weiss v. Taylor, 144 Ala. 440; San Francisco v. Buchman, 111 Cal. 25; Hall v. Brefogle, 162 Ind. 496; Young v. Rothrock, 121 Iowa 588; N. P. R. Co. v. Lake, 10 N.D. 541; 28 Cyc. 893; 3 Dill. Mun. Corp. § 1175; State ex rel. v. Minn. Transfer Co. (Minn.) 83 N.W. 32; Joyce, Nuisances, § 231; Pontiac & La. P. R. Co. v. Hilton, 69 Mich. 115, 36 N.W. 739; Neal v. Gilmore, 141 Mich. 519, 104 N.W. 609.
Cellars, vaults, and underground excavations may be made under the street or sidewalk only when traffic on the street is not interfered with or hindered. McCarthy v. Syracuse, 46 N.Y. 194; Dell Rapids Merc. Co. v. Dell Rapids, 11 S.D. 116; Papworth v. Milwaukee, 64 Wis. 389; Fisher v. Thirkill, 21 Mich. 1.
The owners of the soil or fee may only make a reasonable use of the land above and below the surface for operations which do not incommode the public or impair the usefulness of the way. 83 Me. 508; Clark v. Lake St. Clair etc. Co., 24 Mich. 508; McCarthy v. Syracuse, 46 N.Y. 194.
A street cannot be put to any use by any person which subordinates the right of the public to free and unobstructed passageway to the private use. Tillie v. Mitchell & L. Co., 121 Wis. 1; Reimer's Appeal, 100 Pa. 182, 45 Am. Rep. 373; Field v. Barling, 148 Ill. 556; Savage v. Salem, 23 Ore. 381; Chicago etc. R. Co. v. Quincy, 136 Ill. 563; Pastorino v. Detroit, 182 Mich. 5, Ann. Cas. 1916D, 768; Fuller v. Grand Rapids (Mich.) 63 N.W. 530; Ann. Cas. 1916D, 773, note; Pagames v. Chicago, 111 Ill.App. 590; Com. v. Morrison, 197 Miss. 199, 125 Am. St. Rep. 338, 345, 346 and 348, note; Ann. Cas. 1917A, 558, note.
Lawrence & Murphy and Barnett & Richardson, for respondents.
After making proper application for permit to build, or to do any other lawful act, and permission is denied, the citizen may invoke the aid of the court to prevent an unreasonable refusal to allow him to use his property in a lawful manner. City v. Army (Tex.) 127 S.W. 860.
"Trustees are not relieved from their duty under an ordinance to grant a building permit when the application is in substantial accordance with the ordinance, because of failure of the commissioner of public works to approve of the plans." People v. Village (Ill.) 109 N.E. 11.
"The superintendent of buildings cannot arbitrarily refuse a permit, nor should he refuse it when application and plans filed comply with all provisions of law." Lakes Co. v. McDermott, 160 N.Y.S. 450; People v. Reville, 100 N.Y.S. 584; City v. Kellner, 153 N.Y.S. 472; Stubbs v. Scott (Md.) 95 A. 1060; People v. Stroebel (N.Y.) 103 N.E. 735.
Owning the fee to the center of the street, the plaintiff was at liberty to use, subject to the public casement, the same or any parts of his property, and the construction of the area way was not, in itself, unlawful. The rule might be otherwise where the fee of the street was in the city. Dell Co. v. City (S.D.) 75 N.W. 898; Water Co. v. City (Cal.) 90 P. 1053.
The rule is settled in this state that under the power to control, cities and towns may permit the use of streets close to buildings for area ways and cellarways, if properly protected, so long as they do not unreasonably obstruct the street, or cause private injury to others. Went v. Town (Iowa) 142 N.W. 1024; Crosby v. City (Iowa) 150 N.W. 246; Ward v. Kellog (Mo.) 148 S.W. 174; Sears v. City (Ill.) 93 N.E. 158; Tacoma Co. v. City, 93 N.E. 153; People v. Ahearn, 109 N.Y.S. 249; Adair v. City (Ga.) 52 S.E. 729.
To give to the law the construction placed by counsel would place every house, every building and business, and all property of the city at the uncontrolled will of the temporary local authorities. Yates v. City (U. S.) 19 L.Ed. 984; Mayor v. Hitchins (Md.) 59 A. 49.
The city cannot and does not have absolute control over things which do not hinder, delay, or endanger the public in its use of the streets and sidewalks. State v. Higgs (N. C.) 48 L.R.A. 446; City v. Teass (W. Va.) 19 L.R.A. 803, 809; Mayor v. Wineland (Md.) 64 L.R.A. 627; Pauer v. Albrecht (Wis.) 39 N.W. 771; Murdon v. Town (Del.) 96 A. 506; City v. Harland (Idaho) 151 P. 1191; R. Co. v. City (Tex.) 122 S.W. 413; City v. Rogers (Colo.) 104 P. 1042; City v. Weber (Ill.) 92 N.E. 859; Donohoe v. Fredlock (W. Va.) 79 S.E. 736; City v. R. Co. (Ill.) 102 N.E. 785.
The contention that the city has power to arbitrarily declare a certain structure a nuisance, and therefore it is a nuisance, cannot be sustained. Everett v. City, 19 N.W. 140; Wolff v. District, 196 U.S. 153; Robert v. Powell, 61 N.E. 699; Village v. Ward (Ohio) 96 N.E. 937; City v. Lambert (Va.) 68 S.E. 276; Keyes v. Cedar Falls (Iowa) 78 N.W. 227; Aldrich v. City (Mass.) 99 N.E. 329.
It matters not whether the structures be underneath or above the surface of the street, so long as they are within the reasonable use of the property. 3 McQuillin, Mun. Corp. pp. 2280-2281; Reynolds v. Bank (Iowa) 136 N.W. 529; Pickrell v. City (Ky.) 121 S.W. 1029; Litchfield Co. v. Com. (Ky.) 136 S.W. 639; City v. Lambert (Va.) 68 S.E. 276; Perry v. Castner (Iowa) 66 L.R.A. 160; Aldrich v. City (Mass.) 99 N.E. 329; Jorgenson v. Squires (N.Y.) 39 N.E. 373; Morrison v. McAvoy (Cal.) 70 P. 626; Everett v. City (Mich.) 19 N.W. 140.
"It is not unreasonable to accord to a citizen property owner the same privileges enjoyed by nearly all the lot owners in the same locality." Pittsburgh Co. v. Fidelity Co. (Pa.) 56 A. 436; Pickrell v. City (Ky.) 121 S.W. 1029; Perry v. Castner (Iowa) 66 L.R.A. 160.
"An ordinance providing certain restrictions in the erection of certain structures constitutes an implied authorization to erect such structures." Laviasa v. R. Co. McGloin (La.) 299; Livingston v. Wolf, 20 A. 551; Jorgenson v. Squires (N.Y.) 39 N.E. 373; City v. Sheppard (Pa.) 27 A. 972; Devine v. Co., 88 N.Y.S. 704; Bristow v. Co., 75 N.E. 1127; Morrison v. McAvoy (Cal.) 70 P. 626.
How can the city, after having passed and enforced for many years, the ordinance in question, now claim that an area way constructed exactly according to such ordinance is unreasonable or dangerous? Such a contention would, in effect, amount to a collateral attack on its own ordinance. 2 McQuillin, Mun. Corp. p. 1708.
Statement of facts by BRUCE, Ch. J.
The case of Kennedy et al. v. City of Fargo et al. involves an appeal from a temporary injunction, enjoining and restraining the city of Fargo, its city commissioners, its city engineer, its city attorney, and its city building inspector, "from obstructing, hindering, or interfering with the plaintiffs (who are the owners or lessees of certain abutting property) in the use and maintenance of that certain area way, located immediately in front of the three story brick building and basement, known as the Hotel Dacotah, said area way providing an entrance and opening to the basement of said building and the barber shop of the above-named defendant, James P. Reynolds, said area way to be protected by railings and gate as set forth in the files in this action, pending the trial of said action on the merits."
It appears from the record that Broadway, including the whole of the sidewalk on the east side and in front of the Hotel Dacotah, has been the principal business street of the city of Fargo for forty years; that the tracks of the Northern Pacific Railway Company cross Broadway just south of the said hotel, and that there are...
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