McGowan v. City of Burns
| Decision Date | 04 May 1943 |
| Parties | McGOWAN ET AL. v. CITY OF BURNS |
| Court | Oregon Supreme Court |
An "apron approach" retains the curbstone and passes the traffic over it. A "ramp approach" to the contrary eliminates the curbstone. It begins at the level of the gutter after the curb has been removed and slopes its surfaces gradually upward until it meets the level of the sidewalk.
Municipal corporations
2. In the application of the ancient definition of "nuisance" as that which worketh hurt, the decisions declare that any obstruction in a street, placed there without authority from the proper public body, constitutes a "public nuisance" and that any fixed permanent object built into a public thoroughfare without proper authorization, and interfering with the function of such public thoroughfare is a "public nuisance per se".
Automobiles
3. A resolution by city council ordering abatement as nuisances of two concrete apron approaches to filling station was in effect an "ordinance" within statute providing that anything done or existing within limits of any city or town, which is or may be declared by law or by ordinance to be a nuisance, shall be a "nuisance".
Automobiles
4. Two concrete apron approaches from street to filling station were "nuisances".
Municipal corporations
5. Owner of property abutting on city street in providing for use of street as means of access to and egress from property must not render the street dangerous for travel.
Municipal corporations
6. The right of access to and egress from a public street is subject to the public's superior rights and to public regulation.
Municipal corporations
7. Upon improving a street so as to make it safe for travel, the public is entitled to have it remain in that condition, and any object placed in the street without public authority is a "nuisance" if it obstructs the street or renders travel upon it dangerous, irrespective of whether the object is merely a nuisance or a nuisance per se.
Municipal corporations
8. The essential characteristic of a "nuisance" it that it imperils travel.
Estoppel
9. Where property owners knew when they expended money in construction of apron approaches to filling station that they were doing so without right, city was not "estopped" from demanding removal of such obstruction, although city did not prevent their completion.
Nuisance
10. A nuisance gains no toleration in the law so far as the public is concerned, through its long continuance.
ON OBJECTION TO COST BILL
Costs
11. Appellants' objection to item in respondent's bill of disbursements for copy of transcript of testimony would be sustained.
Courts
12. Power to state reasons prompting decision belongs inherently to every judge, and is a component of the power to adjudicate.
Courts
13. Amendment to Code of Civil Procedure, by omitting words permitting court to deliver reasons, either orally or in writing, in support of court's decision, separate from the decision, and to file such reasons with the clerk, did not deprive judge of right to file memorandum decision in records of cause, or to state from the bench the reasons for decision.
Appeal and error
14. Rules of Supreme Court contemplate that nothing shall be printed in brief or in abstract of record which will not facilitate just determination of controversy.
Appeal and error
15. Copy of trial judge's memorandum opinion should not be printed, as part of either abstract of record or brief if opinion is inapplicable to assignments of error.
Appeal and error
16. Where parts of trial judge's memorandum opinion will be of no consequence to issues presented to Supreme Court, those parts ought not to be printed, as part of either abstract of record or of brief, though remainder of the opinion is so printed.
Costs
17. Whether a counsel will subject client to expense of printing parts of typewritten record or quotations from decisions found in reports is for counsel's determination, and, while disbursements for unnecessary printing will not be allowed as part of bill of costs and disbursements on appeal, the printing of parts of the typewritten record or of excerpts from decisions which are reasonably necessary in order to present a contention is not deemed unnecessary.
Costs
18. Respondent could enter as item of expense in bill of costs and disbursements on appeal amount paid for printing respondent's additional abstract of record, consisting of copy of trial judge's memorandum opinion, though opinion was 31 pages long and, if printed at all, should have been part of respondent's brief, where charge for adding opinion to abstract of record was less than for adding opinion to briefs.
See 14 Am. Jur. 359, 37 Am. Jur. 809
31 C.J.S., Estoppel, § 146
20 C.J.S., Costs, § 359
Before BAILEY, Chief Justice, and BELT, ROSSMAN and LUSK, Associate Justices.
Appeal from Circuit Court, Harney County.
Action by Archie McGowan and Ethel L. Morgan against City of Burns to enjoin defendant from removing from one of its streets two driveway structures built there by plaintiffs. From a decree for defendant, the plaintiffs appeal.
AFFIRMED.
C.B. McConnell, of Burns, for appellants.
R.E. Kriesien, of Burns, for respondent.
This is an appeal by the plaintiffs from a decree of the circuit court which denied to them an injunction which they sought for the purpose of preventing the defendant municipality from removing from one of its streets two driveway structures built there by the plaintiffs.
September 24, 1941, the council of the defendant municipality adopted a resolution which declared that the plaintiffs' structures "and other approaches of similar design" were nuisances, and ordered their abatement. The adoption of the resolution precipitated the suit now before us.
The two driveway structures, which the witnesses termed aprons, were built by the plaintiff, Archie McGowan, in 1937, in Madison Street near its intersection with North Broadway street in the defendant municipality. McGowan owns the adjacent property and at that time was erecting upon it a gasoline filling station. The curbstone along Madison Street at the place in question is about six inches high. The purpose of the aprons was to afford access over the curbstone to the filling station. Instead of removing the curbstone and rebuilding the sidewalk so that it would slope down to the gutter of the street in the form of a ramp, he built up the part of the street adjacent to the gutter until it was flush with the curbstone. Thus, the latter virtually disappeared. The built-up section is the apron.
The aprons are made of concrete. One stretches 31 feet, 10 inches, along the curbstone, and the other, 25 feet. A space of 35 feet lies between the two. The longer of the two aprons extends from the curbstone four feet and six inches into the street. The 25-foot apron extends two feet and ten inches into the street. As already indicated, both aprons abut on the one side against the curbstone and at that point are of equal height with it, that is, six inches. As each apron extends from the curbstone into the street, its height gradually diminishes until at its outer extremity it merges directly with the pavement. Thus, it affords ready access to the filling station grounds.
Since the apron, made as it is of concrete, completely fills the gutter, it would prevent the flow of surface water in the gutter unless some provision were made for it. For that reason, a metal culvert was placed in the gutter before the cement was poured for the apron. The surface water flows through the culvert.
The plaintiffs' property is situated at the northeast corner of North Broadway and Madison Streets in the defendant municipality. It faces 100 feet on both streets. January 9, 1937, Mr. McGowan and two associates applied to the defendant for a permit to improve the property with a gasoline service station. The application read, in part: "We are attaching hereto a copy of the proposed ground plan." The application and plan are before us as exhibits. The plan was prepared by a competent engineer and was drawn to scale. There is no indication whatever upon it for an apron approach. To the contrary, it indicates approaches to the station of the type that is known as a ramp. It shows two of these, one for the Broadway side and the other for the Madison Street side. As we have said, an apron approach retains the curbstone and passes the traffic over it. A ramp approach, to the contrary, eliminates the curbstone. It begins at the level of the gutter, after the curb has been removed, and slopes its surfaces gradually upward until it meets the level of the sidewalk. In the present instance, since the sidewalk is immediately adjacent to the curbstone, the drawings which indicate the ramps called for the reconstruction of a part of the sidewalk on the Broadway side 44 feet long along the curb and 6 feet wide, and on the Madison Street side a section of the sidewalk 32 feet long and 6 feet wide. At both of those places the plans contemplated the removal of the curbstone and the substitution of the parts of the sidewalk above mentioned with new parts sloping upward from the level of the gutter to the level of the remaining sidewalk. The reconstructed area would, of course, be the ramp.
The application for the building permit was granted and the improvements were constructed in harmony with the plan, with the exception of the approach...
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