Village of Sand Point v. Doyle

• Decision Date: 30 December 1905
• Citation: 11 Idaho 642,83 P. 598
• Parties: THE VILLAGE OF SAND POINT v. DOYLE
• Court: Idaho Supreme Court

83 P. 598

11 Idaho 642

THE VILLAGE OF SAND POINT v. DOYLE

Supreme Court of Idaho

December 30, 1905

COMPLAINT IN EQUITY-DEMURRER SHOULD BE OVERRULED WHEN.

1. Where the complaint alleges the corporate capacity of plaintiff, and that by some threatened act defendant will create a nuisance or threatens to or is about to commit some act that will endanger the health of the inhabitants of the village or city, or that will result in damage to the property of the city or village, or may be the means of causes of action for damage against the city or village equity will grant relief.

2. Where a complaint states any cause of action that will put the defendant on his defense of the alleged wrongful act, it is not subject to demurrer.

(Syllabus by the court.)

APPEAL from the District Court of Kootenai County. Honorable R. T Morgan, Judge.

Judgment for respondent on demurrer for his costs, from which the appeal was taken. Reversed.

Demurrer overruled. Reversed and remanded. Costs awarded to appellant.

Herman H. Taylor and Charles L. Heitman, for Appellant.

The laws of Idaho place the burden of maintaining and keeping in safe repair all streets, highways and thoroughfares within their corporate limits upon cities, towns and villages. (Rev Stats., sec. 2230, subd. 16; City of Genessee v. Latah Co., 4 Idaho 141, 36 P. 701; Nelson v. Board of Commrs., 6 Colo. App. 279, 40 P. 474.) The power of absolute control of the highways within an incorporated town or village is vested in the municipality. Their use, or the dedication of their use, or any portion thereof, for private uses, cannot be granted by the town, or its authorities, any attempt so to do being ultra vires and void. (State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117, 123; Davis v. Mayor, 14 N.Y. 524, 67 Am. Dec. 186. See elaborate note to 38 Am. Rep. 127, 128.) It is the duty of the municipality to keep in safe repair all bridges within its corporate limits. Any negligence in this regard by the municipality would render it liable for any damages that might be caused by said negligence. (City of Topeka v. Hemstead, 58 Kan. 328, 49 P. 87; Mischke v. City of Seattle, 26 Wash. 616, 67 P. 357.) There is no such thing as a rightful private permanent use of public highways. (State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 123, and note.) The dedication of a highway extends to the whole width of it, whether it is all used or not. The street includes sidewalks. (2 Dillon on Municipal Corporations, sec 780, note and cases cited; Giffen v. Lewiston, 6 Idaho 231, 55 P. 545.) It is claimed by respondent that appellant has an adequate remedy at law. The only legal remedy which appellant would have would consist of repeated actions for damages. (1 Pomeroy's Equity Jurisprudence, secs. 252, 257, 271, 273, and cases there cited.) The fact that the act may be punished criminally will not prevent the exercise of the restraining power of equity. (Attorney General v. Hunter, 1 Dev. Eq. (16 N. C.) 12.)

R. E. McFarland, for Respondent.

There is not a single fact alleged showing how or in what manner the bridge will be rendered "unsafe" or "insecure." Injunctions are not granted upon bare suspicions, opinions, assumptions or conclusions. (10 Ency. of Pl. & Pr. 925, 926; Longshore Printing etc. Co. v. Howell, 26 Or. 527, 46 Am. St. Rep. 640, 38 P. 547, 28 L. R. A. 464; City of Janesville v. Carpenter, 77 Wis. 288, 20 Am. St. Rep. 123, 46 N.W. 128, 8 L. R. A. 808; Insurance Co. of North America v. Bonner, 24 Colo. 220, 40 P. 366; Lorenz v. Waldron, 96 Cal. 243, 31 P. 56.) The respondent being an abutter is entitled to a way of ingress and egress through streets, and, if the bridge is a street, through the bridge, and has a right to connect with the bridge. (Spencer v. Metropolitan St. Ry. Co., 120 Mo. 154, 23 S.W. 126, 22 L. R. A. 668; Willamette Iron Works v. Oregon Ry. etc. Co., 26 Or. 224, 46 Am. St. Rep. 620, 37 P. 1016, 29 L. R. A. 88; Bannon v. Rohmeiser, 90 Ky. 48, 29 Am. St. Rep. 355, 13 S.W. 444; Brakken v. Minneapolis etc. Ry. Co., 29 Minn. 41, 11 N.W. 124; Haynes v. Thomas, 7 Ind. 38; Heller v. Atchison etc. Ry. Co., 28 Kan. 635; 2 Smith on the Modern Law of Municipal Corporations, 1214; 1 Am. & Eng. Ency. of Law, 225.) Recurring to the proposition that equity will not interfere to restrain the commission of a criminal offense, I submit that the ordinance pleaded in the complaint, if valid, makes it a criminal offense to conduct a saloon within the restricted district. (Horr & Bemis on Municipal Police Ordinances, p. 186, sec. 206; 1 High on Injunctions, secs. 20-28; City of Janesville v. Carpenter, 77 Wis. 288, 20 Am. St. Rep. 123, 46 N.W. 128, 8 L. R. A. 808; State v. Schwickardt, 109 Mo. 496, 19 S.W. 52, 53; Neaf v. Palmer, 103 Ky. 496, 45 S.W. 506; Planet P. & F. Co. v. St. Louis etc. Ry. Co., 115 Mo. 613, 22 S.W. 616.) Appellant goes so far as to conclude that if the building is used "for saloon purposes, or any other purpose," it "will inflict irreparable injury and damage upon the public." How? Equity will not restrain possibilities, (1 High on Injunctions, secs. 742-745; Sherman v. Clark, 4 Nev. 138, 97 Am. Dec. 519; Lorenz v. Waldron, 96 Cal. 243, 31 P. 56; Goodwin v. New York etc. Ry. Co., 43 Conn. 499; Truly v. Wanzer, 5 How. (U.S.) 141, 12 L.Ed. 88.) From the complaint as a whole I infer that appellant claims ground on either side of the bridge as a part of the highway because the bridge has been used eight years. It is a well-settled rule of law that a highway established by user is only as wide as actually used. (13 Cyc. 488c; Talmage v. Huntting, 29 N.Y. 447; Valley Pulp etc. Co. v. West, 58 Wis. 599, 17 N.W. 554.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER C. J.

Plaintiff filed its complaint alleging that it is a corporation. It is shown a stream known as Sand creek runs through the village of Sand Point, and that there is a bridge across said stream connecting the streets at either end of the village. This bridge, it is alleged, is four hundred and fifty feet long sixteen feet wide, inclusive, and fourteen and one-half feet in width within the railing, and from fifteen to twenty feet high. It is built of wood and is a principal highway connecting the east with the west side of said creek. It was constructed by Kootenai county years ago and has along its entire length on both sides substantial wooden railings necessary for the safety of the traveling public, and that it is necessary that such railings should remain intact and in sound condition. That large numbers of women and children residing in said municipal corporation cross this bridge daily; that the street at each end of this bridge is fifty feet wide and has been dedicated to the public and accepted by the municipal corporation. That the chairman and board of trustees of said municipal corporation did, on or about March 2, 1903, enact an ordinance prohibiting the sale of intoxicating liquors within a distance of one hundred feet on the north and south sides of said bridge. This ordinance was published and took effect April 10, 1903, and has never been repealed. The ordinance prohibits the sale of ardent, distilled, fermented, or liquors of any character within the prescribed limits. It is next shown that respondent claims to be the owner of land situated within the ravine through which said stream flows within the corporate limits of appellant, which lot of land touches the right of way upon which said bridge is situated, on the north, one hundred and ten feet from the west end of said bridge, and that respondent has constructed a wooden frame building on said lot and is building a platform or bridge from said building over and upon the right of way crossed by said bridge with the intention of connecting said wooden building by said bridge or platform, with the floor of said bridge, and that he threatens to tear down and remove the railing upon said public bridge at a point where said platform is extended to connect with the floor of said public bridge, in order to use said public bridge as an outlet from said building. That defendant intends to use said building as a saloon for the purpose of retailing intoxicating liquors to the public therein in violation of the provisions of the municipal ordinance before mentioned. That defendant's said building is from seventeen to twenty feet from the railing of said public bridge on the north side; that if defendant is allowed to connect said building with the floor of said public bridge and remove the railing therefrom, in order to give him an outlet upon said bridge, by reason of the removal of said railing, will become unsafe and insecure for the traveling public and for teams and vehicles. That if defendant is allowed to conduct a saloon in said building, that portion of the public bridge in front of his saloon will become a loitering place for drunken and idle men, and will be annoying as well as unsafe for the public, especially women and children, to cross the public bridge at said points. That said bridge was erected at considerable cost and is the principal highway across said creek for the public; that a wooden building will jeopardize the existence of said bridge by reason of probable danger from fire from respondent's wooden building. That plaintiff, prior to the commencement of the construction of said wooden building by defendant, notified defendant that he would not be allowed to construct or maintain a building for saloon purposes, or for any other purpose, along the line of said bridge; but that defendant disregarded said notice and persisted in constructing said building, and still persists in connecting said building with the public bridge with the intention of using...