State ex rel. King v. Friar

• Decision Date: 26 September 1933
• Docket Number: 22639.
• Parties: STATE ex rel. v. FRIAR et al. KING, Atty. Gen.,
• Court: Oklahoma Supreme Court

25 P.2d 620

165 Okla. 145, 1933 OK 501

STATE ex rel. KING, Atty. Gen., v. FRIAR et al.

No. 22639.

Supreme Court of Oklahoma

September 26, 1933

Syllabus by the Court.

1. A filling station which is constructed so as to encroach upon the right of way of a state highway for a distance of five feet so that it obstructs the sight distance of travelers upon said highway is a public nuisance.

2. Section 13, chapter 48, Session Laws 1923-24, as amended by chapter 82, Session Laws 1927, which provides that a city or town is charged with the maintenance of a state highway constructed by the state highway commission through said city or town does not preclude the Attorney General, at the direction of the state highway commission, from maintaining an action to enjoin the construction of a filling station which encroaches upon the right of way of said highway within the corporate limits of said city or town, where it is shown that said filling station, when so constructed, would make the highway more dangerous for travelers thereon although it would not actually operate as an obstruction to travel.

3. Laches and estoppel do not operate against the state.

Appeal from District Court, Ottawa County; Dennis H. Wilson, Judge.

Action by the State of Oklahoma, on the relation of J. Berry King Attorney General of the State of Oklahoma, against Tessie Friar and J. F. Irby. From a judgment for defendants plaintiff appeals.

Reversed and remanded, with directions.

J Berry King, Atty. Gen., and W. C. Lewis, Asst. Atty. Gen for plaintiff in error.

O. F. Mason, of Miami, for defendants in error.

OSBORN Justice.

This is an action for injunction filed in the district court of Ottawa county, by the state of Oklahoma, on relation of the Attorney General, against Tessie Friar and J. F. Irby, to enjoin them from constructing a filling station in such manner as to encroach upon State Highway No. 66, in the incorporated town of Afton. After a hearing the court denied the application for injunction, from which ruling the state has appealed. The parties will be referred to as they appeared in the trial court.

The action was filed at the direction of the state highway department. It is alleged that State Highway No. 66 has been constructed through the town site of Afton, upon First street in said town; that the right of way is seventy feet in width according to the town ordinance; that defendants are constructing a filling station on lot 1, block 17, of Crowell's addition to the town of Afton, which structure protrudes on the right of way of the highway a distance of five feet; that if the filling station is so constructed it will greatly interfere with the right of the public to use of the highway; that plaintiff has no plain, speedy, and adequate remedy at law.

Defendants allege that said highway is completed and open for travel and consequently is wholly under the jurisdiction of the town of Afton; that according to said town ordinance the curb is fifteen feet from the center line of said First street, and that there are now ten filling stations on said First street in operation which protrude from ten feet to fifteen feet into said right of way. They deny that said filling station constitutes any obstruction whatever in said street and allege that the state highway department has no authority to prosecute this action.

There is little, if any, dispute as to the facts in the case. It is shown that the filling station, if constructed according to the plans indicated in the evidence and according to the concrete bases for the pumps already laid, will be located thirty feet from the center line of the seventy-foot right of way, which would encroach upon said right of way five feet. As the cause is submitted in the briefs, it is conceded that the only question of consequence to be determined herein is one of law, and that is, whether or not the state highway commission is authorized to maintain this action.

The defendant contends that the town of Afton, which has a population of 1,219, as shown by the census of 1930, is vested with sole jurisdiction over the streets of said town, especially by virtue of section 13, chapter 48, Sess. Laws 1923-24, which provides: "The State Highway Commission shall have no authority to grade or drain any highway, street or alley within the corporate limits of any city, or incorporated town, but it is hereby given authority to hard surface within the limits of any city or incorporated town, any street which has been properly drained and put to grade, and which is a continuation of the state highway system; provided, that no hard surfacing within the corporate limits of any incorporated city or town, done under the provisions of this section, shall exceed eighteen (18) feet in width; and after the completion of such improvement, the same shall be maintained by the city or town, and said city or town shall rest under the same obligations for the care of such highway as is now or may hereafter be provided for the care of the federal aid roads. This Section shall apply with equal force to the hard surfacing of county highways by the county commissioners."

Said section was thereafter amended by chapter 82, Sess. Laws 1927, as follows: "The State Highway Commission shall have authority to drain, grade, hard surface, and construct necessary bridges and underpasses on any highway, street or alley within the incorporated limits of any city or town, which highway, street or alley is a continuation of the State Highway System; provided, that said hard-surfacing within the limits of said City or Town, done under the provisions of this Section, shall be eighteen (18) feet in width; and after the completion of such improvements or any of them they shall be maintained by the city or town, and said city or town shall rest under the same obligations for the care of such highway as is now or may hereafter be provided for the care of the federal aid roads. This section shall apply with equal force to the hard-surfacing of county highways by the county commissioners."

Defendants contend that since the duty of maintenance of the state highway within the corporate limits of the city devolves upon the city after its construction, the jurisdiction and authority of the highway commission is at an end, and that any action of this nature would have to be maintained by the city officials.

The Attorney General contends that the encroachment of said filling station on the public highway constitutes a public nuisance, in that it interferes with the reasonable use of the highway by the public and makes said highway more dangerous for travelers thereon and is subject to abatement by any public officer.

Section 7870, C. O. S. 1921 (section 11489, O. S. 1931), defines a "nuisance" as follows:

"A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:

First. Annoys, injures or endangers the comfort, repose, health or safety of others; or,

Second. Offends decency; or,

Third. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or,

Fourth. In any way renders other persons insecure in life, or in the use of property."

Section 7871, C. O. S. 1921 (section 11490, O. S. 1931), provides that a nuisance is public when it affects any considerable number of persons, and section 7880, C. O. S. 1921 (section 11499, O. S. 1931), provides that a public nuisance may be abated by any public body or officer authorized thereto by law.

In the case of Standard Oil Company v. Commonwealth, 131 Va. 830, 109 S.E. 316, it is said: "Obstructions or encroachments on a highway or anything which interferes unreasonably or unnecessarily with the use of the highway by the public, or which makes the highway more dangerous for travelers thereon, constitute a public nuisance per se, even when they do not actually operate as an obstruction to travel."

See, also, 29 C.J. 616; 13 R. C. L. 160; First National Bank of Montgomery v. Tyson, 133 Ala. 459, 32 So. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46; City of Pittsburgh v. Pittsburgh & L. E. R. Co., 263 Pa. 294, 106 A. 724; Price v. Travis, 149 Va. 536, 140 S.E. 644, 56 A. L. R. 209; County Commissioners of Caroll County v. Rickell, 146 Md. 463, 126 A. 711; Smith v. McDowell, 148 Ill. 51, 35 N.E. 141, 22 L. R. A. 393; City of Eugene v. Garrett, 87 Or. 435, 169 P. 649, 170 P. 731.

The Attorney General relies upon the rule announced in the case of state ex rel. Hoffman v. Swift & Co., 127 Kan 817, 275 P. 176, 65 A. L. R. 696, wherein it is said: "The fact that the legal title to the streets of a city is vested in the county and the control of streets is conferred upon the city does not deprive the state, on the relation...