Savage v. City of Salem
| Decision Date | 09 January 1893 |
| Citation | 31 P. 832,23 Or. 381 |
| Parties | SAVAGE v. CITY OF SALEM. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Marion county; RHEUBEN P. BOISE, Judge.
Action by John D. Savage against the city of Salem to recover damages for the alleged wrongful removal by defendant of two water tanks erected in defendant's streets by plaintiff with defendant's permission. Judgment for plaintiff. Defendant appeals. Affirmed.
D'Arcy & Bingham, for appellant. Bonham & Holmes for respondent.
This is an action to recover damages for the removal by defendant of two water tanks which had been erected by plaintiff on State and Court streets, in the city of Salem by permission of defendant, for the purpose of supplying his sprinkling wagons with water for street sprinkling, and comes here on appeal from a judgment in favor of the plaintiff. On the 16th of February, 1887, the city of Salem through its common council, authorized and empowered the plaintiff, under the supervision of its street supervisor, to erect and maintain water tanks, for the purpose of supplying his street-sprinkling wagons with water with which to sprinkle and allay the dust on certain of the principal streets of the city, for a compensation by him received from the adjoining property owners. Under this authority the two tanks in question were erected by plaintiff, at the places designated, and under the supervision of the street supervisor, and were maintained and used by him for the purposes for which they were authorized until July 7, 1891, when the council ordered and directed the street commissioner to remove the tanks, which was accordingly done, after a refusal by plaintiff to remove them himself, when this action was commenced to recover damages for such removal.
The contention for appellant is--First, that the city had no power or authority to authorize the erection of these water tanks in the streets, because they were to be used for private purposes, and were therefore nuisances per se, which could be abated at any time; and, second, if this is not so the permission to so erect them was but a mere license, revocable at the pleasure of the city. At the outset it is well to note that this case is unembarrassed by any question as to the right or remedy of an abutting property owner, or of a private individual, who has suffered some injury special to himself, and not in common with the public, from the erection or obstruction in question, but is solely a question between the municipality, which authorized the alleged obstruction, and the licensee; and hence many of the authorities cited and relied on by the defendant are not applicable to the facts of this case, or in point, and the language of the opinions in these, as in all cases, must be interpreted in the light of the particular facts as presented to the court.
As a general rule, it has been said that "public highways belong, from side to side, and end to end, to the public," ( State v. Berdetta, 73 Ind. 185; Elliott, Roads & S. 478;) and hence any unauthorized permanent erection or structure which materially encroaches upon a public street or highway, and impedes or interferes with travel, is a nuisance per se, and may be abated as such, notwithstanding ample space is left for passage by the public. But it now seems settled that municipal authorities, which possess, under their characters, general control over the streets, have the power and may authorize and render lawful obstructions and erections therein for a public purpose, which otherwise would be deemed nuisances, on the ground that such erections or structures are merely putting the street to a new and improved use, as demanded and required by the necessities of the times and the modern conveniences and appliances. It is upon this principle that the right to grant franchises authorizing the use of the streets for water and gas pipes, for the construction and operation of street railways, the erection of water hydrants and lamp-posts, of telegraph, telephone, electric-light, and railway poles, and similar structures, is maintained and now generally recognized and upheld by the courts. 2 Dill.Mun. Corp §§ 657-697; Keasby, Elect. Wires, 86, 89 Thomp.Elect. §§ 26, 28. Since a municipal corporation holds its control and power over the streets in trust...
To continue reading
Request your trial
-
Brusco Towboat Co. v. State, By and Through Straub
...reasonable reliance arises from law rather than from improper government action, the state may be estopped. Thus, in Savage v. City of Salem, 23 Or. 381, 31 P. 832 (1893), the Supreme Court held that where a private party erected a water tank on a public street, at his own expense, pursuant......
-
Northwest Natural Gas Co. v. City of Portland
...(4th ed.1932). In some cases dedication vested fee ownership in the municipality, but in trust for the public use. See Savage v. Salem, 23 Or. 381, 383, 31 P. 832 (1893); Selvin, The Public Trust Doctrine in American Law and Economic Policy, 1789-1920, 1980 Wis.L.Rev. 1403, 1403 n. 4. Once ......
-
Sweet v. Irrigation Canal Co.
...172 Or. 62, 74, 137 P.2d 994, 139 P.2d 785; Town of Gaston v. Thompson, 89 Or. 412, 420, 174 P. 717; Savage v. City of Salem, 23 Or. 381, 383, 31 P. 832, 24 L.R.A. 787, 37 Am.St.Rep. 688; 1 Wood on Nuisances (3d ed.) 34, § 14. Even though it were to be conceded that defendant thus occupied ......
-
Cabell v. City of Cottage Grove
... ... Or. 258] BRAND and RAND, JJ., dissenting ... [130 P.2d 1014] ... [170 ... Or. 259] J.M. Devers, of Salem (J.W. DeSouza, of Salem, and ... W.A. Martin, of Milwaukee, Wis., on the brief), for ... appellants ... [130 P.2d 1015] ... may, for example, permit the use of the surface of any of its ... streets by a common carrier operating motor busses ( ... Savage v. City of Salem, 23 Or. 381, 31 P. 832, 24 ... L.R.A. 787, 37 Am.St.Rep. 688; 38 Am.Jur., Municipal ... Corporations, 210, § 526); and ... ...