Packet Co. v. Sorrells

• Citation: 8 S.W. 683,50 Ark. 466
• Parties: PACKET CO. v. SORRELS
• Decision Date: 19 May 1888
• Court: Arkansas Supreme Court

8 S.W. 683

50 Ark. 466

PACKET CO. v. SORRELS

Supreme Court of Arkansas

May 19, 1888

APPEAL from Jefferson Circuit Court in Chancery, JOHN A. WILLIAMS Judge.

Decree reversed and cause remanded.

N. T White, for appellant.

1. The truth of the answer is confessed by the demurrer. The question then is: Does the answer contain facts sufficient to defeat appellant's right to recover?

The streets belong to the general, rather than to the local public. The proper officers of the commonwealth may proceed in the name of the public by injunction for relief against obstructions or encroachments. 2 Dill. Munic. Corp., sec 659, note 1; 76 Ill. 231; 57 Id., 283; 10 Bush., (Ky.), 288; 56 Ill. 451.

To constitute a building or other structure on the street a nuisance per se, it must have been placed there without legislative sanction. 2 Dill. Munic. Corp., sec. 660; 14 N.Y 506.

Resident citizens or tax payers cannot, as such, on their own behalf, or on behalf of others, maintain a suit to restrain or avoid corporate acts alleged to be illegal. The public by its authorized agents or officers must proceed to prevent or redress the illegal act. 2 Dill. Munic. Corp., sec. 920. In this case all allegations of special or peculiar injury, or damage, distinct from what the public suffers, are denied by the answer, and it is averred that appellee has suffered no such special or peculiar injury.

See 40 Ill. 481; 20 N.J.Eq. 435; 20 Ib., 530; 69 Pa. 59; 50 Ga. 451.

2. The city council has the care, supervision, control, etc., of its streets, etc., sec. 737 Mansf. Dig., and power to establish levees, wharves, etc. Sec. 740 Ib.; 2 Dill. Munic. Corp., sec. 649 and note; 1 Ib., sec. 109 and note.

By act 1885, section 3, page 97, cities may vacate or lease such portions of the streets, wharves, etc., as may not be required for public use, etc. This act was held constitutional in 49 Ark. 199. The council had the right to permit a building to be maintained on a public wharf, for the public convenience. 94 U.S. 324; 2 Dill. C. C., 70; 1 Dill. Munic. Corp., sec. 103; 4 A. and E. Corp., cases 511 and notes.

T. F. Sorrells, for appellee.

Where a lot fronts on a street, and the deed calls for the street as a boundary, the title passes to the center of the street, subject alone to the public use. Kent Com., Vol. 3, p. 433; 2 Smith, Lead. Cases, 218; 6 Pet., 499; 21 Peck, 295; Angell on Highways, 293-303; 34 Paige, 513; 5 Porter, 309; 12 Ga. 245; 22 Wend., 126; 1 Sandf., 323; 8 B. Mon., 232, 237; 11 B. Mon., 163; 24 Ark. 102. And no city ordinance can deprive him of this right, not even under an act of the legislature. Smith Lead. Cases, 8th Ed.), 160.

The ordinance of the city was ultra vires and void. Const. Ark. 1874, Art. 2, sec. 22, and Art. 12, sec. 9; 61 Ill. 115; 6 Wisc., 605; 25 Mo.. 277; 18 Cal. 229; 24 Id., 427; 37 Miss. 700; 10 Iowa 540; 50 N.H. 591; 1 Ga. 524; 46 Ga. 43; 19 Wend., 659.

The easement attaches to the lot, and is as much property as the lot itself. 7 Oh. St., 459-469; 14 Oh. St., 541; 22 Iowa 351.

The owner of a lot may enjoin by bill in equity one who obstructs a street. 9 S. and R., 31; 3 Rand., 563; 19 Conn. 182; 11 Id., 82; 13 Mass. 255; 94 U.S. 324.

The city authorities cannot confer upon a private person or corporation a right to use a street, or a portion thereof, for any purpose except for passing or repassing. 32 Me, 431; 15 Kans, 81; 4 Hun., 675; 33 N. J. L. --; 15 Fla. 306.

Nor can the city council, even by legislative authority, release the public right in a street already dedicated. 76 N.Y. 108; 16 Cold., 150; 27 Mich. 262; 15 Abb. Pr. N. S., 115; 46 How. Pr., 389.

OPINION

BATTLE, J.

On the 25th of May, 1885, Theodoric F. Sorrells filed his complaint in the Jefferson circuit court, alleging, among other things, the following:

That in the year 1830 John W. and James T. Pullen purchased from the United States the land on which the city of Pine Bluff is situated, and in the same year sold a part of the same to one Anthony H. Davis; that in the year 1838 Davis sold to James J. Chowning, William H. Pinkard and Henry S. Dawson a three-fourths interest in this land.

That in the year 1838 the then owners of the land caused the same to be surveyed off into lots and blocks, and in the same year filed in the office of the clerk of Jefferson county a plat and plan of the city of Pine Bluff, designating and naming the various streets and alleys and dedicating to public use the streets of the city.

That long after the filing of the plat of the city, plaintiff became the legal owner in fee of lot number 5 in block number 14, and has been in peaceable and adverse possession thereof since his purchase, for a period of twenty-four years. That said lot is situate at the corner of Barraque and Dardenne streets, fronting 60 feet on Barraque street, running 154 feet north on Dardenne street near the Arkansas river.

That the defendants, John D. Adams, Jas. H. Reed, John H. Harbin and Samuel Hilzheim, composing the Arkansas River Packet Company, have, in violation of the rights of plaintiff, erected a warehouse in the middle of Dardenne street, within ten feet of the lot, thereby almost completely obstructing said street, and dug a deep ditch at the north end and near the center of the street for the purpose of making a steamboat landing. That the ditch is so constructed as to reach the river near the north end of said lot, and that the erection and maintenance of the warehouse on said street and the ditch prevent the free use and occupation of the lot and damage his property; and were made without his knowledge and consent.

The complaint then prays that the court make an order restraining and enjoining the defendants from keeping said warehouse any longer in Dardenne street, and that the defendants be required to remove the same from said street and to fill up the ditch.

To this complaint defendants filed an answer, in which they admit that they have a warehouse on the north end of Dardenne street, north of Barraque street, but deny that the same, in any manner interferes with the property of plaintiff, or that by the erection thereof they violated any of his rights, and allege that Dardenne street, north of Barraque street has been set apart and designated by the city council of Pine Bluff as the city wharf, and that the ditch complained of by plaintiff was dug and is maintained as a passage to and from steamboats for the convenience of loading and unloading freight and passengers, and that the same was necessary for such purposes. They positively deny that the excavation of the ditch or the maintenance of the warehouse upon Dardenne street has, in any manner, interfered with or in the slightest degree injured the property of plaintiff, or that the same is a nuisance, or that the value of plaintiff's property has in any way been impaired, or injured thereby, but that such improvements have increased its value. They pleaded the ordinance of the city of Pine Bluff establishing the city wharf, and annex to their answer a certified copy of the city ordinance establishing Dardenne street north of Barraque street to the lower water mark on the Arkansas river as such wharf.

Plaintiff demurred to the answer because the facts therein stated are not sufficient to constitute a defense; and the court sustained the demurrer to so much of it as pleads the ordinance of the city council of Pine Bluff as authority for building the warehouse, and in other respects overruled it; and, the defendants refusing to plead further, the court rendered a decree, granting an injunction, and commanding defendants, within thirty days, to move the warehouse from Dardenne street. And defendants appealed.

In Taylor v. Armstrong, 24 Ark. 102, this court held, that the interest which the public acquires by the dedication of land for a street or other highway, is merely an easement or right of passage over the soil, and that the owner, who made the dedication, still retains the fee, together with all rights of property not inconsistent with the public use; and that a subsequent conveyance by such owner of a lot on a street laid off and dedicated by him to the public use, in the absence of a reservation, expressed or implied, to the contrary, vests in his grantee the fee in the street to the center as a part and parcel of the grant, subject to the right of the public to use it for the purposes of a street; and that, in the absence of proof, the presumption is that the owners of lots on each side own such fee to the center of the street.

Mr Kent, in his Commentaries, says: "Every thoroughfare which is used by the public, and is, in the language of the English books, 'common to all the king's subjects' is a highway, whether it be a carriage way, a horse way, a foot way, or a navigable river. 'It is,' says Lord Holt, 'the genus of all public ways.' The law with respect to public highways and to fresh water rivers is the same, and the analogy perfect as concerns the right of soil. The presumption is, that the owners of the land on each side go to the center of the road, and they have the exclusive right to the soil, subject to the right of passage in the public. Being...