Norfolk City v. Chamberlaine

• Decision Date: 13 December 1877
• Citation: 70 Va. 534
• Parties: NORFOLK CITY v. CHAMBERLAINE.
• Court: Virginia Supreme Court

70 Va. 534

NORFOLK CITY v. CHAMBERLAINE.

Supreme Court of Appeals of Virginia.

December 13, 1877

Absent, Moncure, P.

The common and select councils of the city of N having granted leave to C, who was then erecting a building on a lot owned by him, to extend the steps of said building out upon the public street, afterwards ordered the removal of said steps. Upon a bill filed by C to enjoin such removal--HELD:

1. Streets in a city or town, though generally subjected to the supervision and control of the municipality, are public highways, the use whereof is for the public at large.

2. The common and select councils of N had no authority to grant permission to C to occupy any portion of the public highway.

3. The common and select councils of N, having the general control over the streets, and power to abate nuisances thereon, and remove obstructions therefrom, the order for the removal of the steps of C's building was within their lawful authority.

4. Inasmuch as the original permission to C to place the steps of his building on the public street was beyond the powers of the municipal authorities of N, they are not estopped to order their removal.

5. The order for the removal of the steps of C's building was not void as being a partial and unjust discrimination against him.

This was an appeal by the City of Norfolk from a decree of the corporation court of Norfolk perpetuating an injunction which had been granted to prevent the removal of steps to a building which had been extended into the sidewalk of a street by R. H. Chamberlaine, by the permission of the council of the city. The case is fully stated by Judge Christian, in his opinion.

W B. Martin, for the appellant.

Baker and Walke, for the appellee.

CHRISTIAN J.

This case is before us upon appeal from an order of the corporation court of the city of Norfolk, perpetuating an injunction. The material facts in the case are as follows:

Chamberlaine the appellee, is the owner of a lot and building in the city of Norfolk known as the " Citizens bank," situate on Main street in said city. The front line of said building is on the north line of Main street, and fronts on said street eighteen feet.

In the early part of the year 1867 the building then on said lot was destroyed by fire. Chamberlaine proceeded to rebuild upon the same lot, and before he put up the front wall of said building he made application to the common and select councils of the city of Norfolk " that he might be allowed to have open iron steps to a new building now (then) being erected on Main street next to the First National bank, to extend no further out than the buttresses of the steps of said bank; the space to be occupied being the same used for a broad step and descent to the building recently destroyed by fire."

Upon this petition the common council, on the same day, adopted the following resolution:

" Resolved, That the steps of the building of R. H. Chamberlaine, now being erected on Main street near Bank street, be permitted, provided they do not occupy any more of the pavement than the steps of the building recently destroyed."

This resolution was concurred in by the select council at their next meeting.

Chamberlaine, having obtained this permission from the select and common councils, completed his building, putting up the front wall immediately upon the line of the street, and extended the steps (of which there was a pair at either end of said building) out upon the sidewalk or pavement, the distance of four feet four inches, and between these steps thus projecting from each end of the building, there was dug out an excavation, and steps were constructed leading to a basement under the house.

In February, 1876, the following petition of the owners and occupants of buildings adjacent to and on the same block with the " Citizens bank," was presented to the select and common councils of the city of Norfolk:

" We, the undersigned, owners or occupants of the stores known as ‘ Atlantic block,’ respectfully represent to your honorable bodies that we find the projection of the steps of the ‘ Marine and Citizens bank’ is a serious detriment and nuisance to us; our stores, at certain times, being almost unapproachable by parties coming from the eastern portion of the city.

We believe that this trespass upon the public sidewalk, in the business section of the place, is a nuisance to all of our citizens, a drawback to business, and ought to be removed.

We, therefore, request that you will instruct the city inspector of streets to have the above mentioned steps removed from the pavement within thirty days after the granting of this petition."

In accordance with this petition the councils directed the inspector of streets to remove the steps of the Marine and Citizens bank, if not removed by the owners within sixty days. The Marine bank (which immediately adjoins the Citizens bank), upon notice given by the inspector, removed its steps, which projected the same distance into the street as those of the Citizens bank. But the latter (the Citizens bank) applied for and obtained an injunction restraining and enjoining the inspector of streets from carrying out the orders of the city councils to remove the steps of the Citizens bank as an obstruction to the street. The bill of injunction was answered by the City of Norfolk, and depositions were taken on both sides, and upon a motion to dissolve the injunction the corporation court, on the 6th July, 1876, entered the following decree:

" This cause came on this day to be heard upon the bill of the complainant, the answer of the City of Norfolk, general replication to the said answer, the exhibits filed, the examination of witnesses; and on the motion of the defendant, the City of Norfolk, to dissolve the injunction awarded in the cause on the 29th day of May, 1876, and was argued by counsel.

On consideration whereof, and the court being of opinion that the order of the councils of the city of Norfolk directing the removal of the steps of the Citizens bank building, the property of the plaintiff in the bill and proceedings mentioned, from the sidewalk of Main street, is a special and unjust discrimination against the plaintiff, and therefore illegal and void, doth so decide and doth overrule the said motion and continue the said injunction."

Afterwards a decree was entered perpetuating the injunction. From this decree an appeal was allowed by one of the judges of this court.

I am of opinion, that this decree of the corporation court of the city of Norfolk perpetuating the injunction is plainly erroneous.

It is well settled that a street in a city or town is a public highway. The word " highway" is considered as the genus of all public ways, so that a common street in any city or town being common to all people is a public highway. Angell on Highways, § 24, p. 19, and notes.

Public streets, unless there be some special restriction when dedicated or acquired, are for the public use, and the use is none the less for the public at large as distinguished from the municipality, because they are situate within the limits of the latter. In other words, public streets are not the property of the municipality or of the people of the municipality, but of the public at large. The legislature may, and generally does, of right, give the supervision and control of streets to the local authorities, but the property in the streets is not in the municipality, but in the public at large. The legislature of the state alone represents the public at large, and it alone has full and paramount authority over all public highways. As was well said by Chief Justice Gibson, in O'Connor v. Pittsburg, 18 Pa. St. R. 187: " To the commonwealth here, as to the king in England, belongs the franchise of every highway as a trustee for the public; and streets, regulated and repaired by the authority of a municipal corporation, are as much highways as rivers, railroads, canals or public roads laid out by authority of the state."

Whether the fee of the street be in the municipality in trust for the public use, or in the adjoining proprietor, it is in either case of the essence of the street that it is public, and hence under the paramount control of the legislature as the representative of the public. Streets do not belong to the city or town within which they are situated, although acquired by...