World Realty Company v. City of Omaha
| Decision Date | 16 April 1925 |
| Docket Number | 23011 |
| Citation | 203 N.W. 574,113 Neb. 396 |
| Parties | WORLD REALTY COMPANY, APPELLEE, v. CITY OF OMAHA ET AL., APPELLEES: JULIUS ORKIN ET AL., INTERVENERS, APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Reversed, with directions.
REVERSED.
Arthur F. Mullen and William H. Herdman, for appellants.
Gaines Van Orsdel & Gaines, William Baird & Sons and Dana B. Van Dusen, contra.
Heard before MORRISSEY, C. J., ROSE, DAY, THOMPSON and EVANS, JJ and SHEPHERD, District Judge.
In this action the plaintiff and appellee (hereinafter called the plaintiff) sued for a decree enjoining the defendants, the city of Omaha and certain of its officers (hereinafter called the defendants), from interfering with the construction and maintenance of a canopy in connection with a theater building which, at the time of the commencement of this action, was being erected by the plaintiff. Julius Orkin and the Blank Realty Company, interveners and appellants (hereinafter called the interveners), after obtaining leave from the court so to do, each filed a separate petition of intervention. Issue being joined, the evidence was taken, and the court below found for the plaintiffs, made a final decree perpetually enjoining the defendants as prayed, and dismissed the petitions of the interveners. The interveners each prosecutes an appeal to this court to reverse the decree so entered. The city of Omaha and its officers do not appeal and appear in this court in the character of appellees.
The facts out of which the controversy arose are as follows:
In the city of Omaha, Douglas street extends east and west, and Fifteenth street extends north and south, intersecting each other at right angles. The streets are 100 feet in width from lot line to lot line, and at their point of intersection are main thoroughfares of the city of Omaha, and the intersection is, approximately, the center of the moving picture business in the city. The sidewalk on the street over which the canopy was constructed is 17 feet in width from lot line to curb. The plaintiff, as tenant under a 99-year lease, occupies, on the northwest corner of the intersection, a parcel of land 132 feet by 110 feet, the latter frontage being on Douglas street, and at the time this controversy arose was engaged in the construction of a theater building upon said parcel of land, the same to cost upwards of $ 300,000. The intervener, Julius Orkin, occupies as a tenant, under a lease expiring in 1931 a parcel of land adjoining plaintiff's land on the west, with a south frontage on Douglas street of 22 feet and a depth of 132 feet, upon which premises is a four-story brick building of like frontage and occupied as a retail store. The first-story front of this building is of glass flushed with the north line of Douglas street, in which intervener Orkin displays at all times, for sale and advertising purposes, merchandise kept for sale in said building. There is also on the front of said building a large sign, and in the front of said building and extending south therefrom a vertical sign showing the intervener's name, the sign extending from the second floor to the top of the building. It does not appear that plaintiff's canopy seriously obstructs the show-windows of this intervener, but it would obscure to quite an extent the view from the street of said intervener's sign that is placed flat upon the front of his store. The intervener, the Blank Realty Company, occupies under a 99-year lease a parcel of ground 133 feet square located on the northeast corner of the intersection of Douglas and Fifteenth streets. Upon said premises the intervener has a theater building three stories in height recently constructed at a cost upwards of $ 300,000, and upon the front of said building intervener has placed and maintains lighting, illuminating, and advertising devices, the same being placed flat upon said building and representing an investment of several thousand dollars and which are maintained continuously, the cost thereof being a very considerable sum. The canopy constructed by plaintiff extends along the south side of the building on Douglas street, having a length of 76 feet 6 inches, and projecting out over the sidewalk 15 feet, and at its lowest point being 10 feet 3 inches above the level of the sidewalk. Its construction is fire-proof and is entirely supported by cables attached to the building from which it projects. The plans therefor provide for the lighting of the entrance to the theatre and the lobby from lights installed in the canopy, and for the lighting of the front of the building by means of lights installed in the roof of the canopy. The effect of the canopy is to obstruct the view from and, to an extent, hide the fronts of the building of each of the interveners, Julius Orkin and Blank Realty Company. On July 30, 1921, on application of plaintiff to R. E. Edgecomb, signing as "building inspector," a permit was issued for the construction of a three-story building. This permit was a conditional permit and a letter of the "chief engineer" accompanying the permit called attention to the conditions. The conditions specially referred to, however, had to do with the structure inside the lot lines, and not to projections extending into the street. The plans submitted at the time this permit was issued showed the canopy proposed to be constructed practically as the same now is. On October 10, 1921, a permit was issued by R. E. Edgecomb, signing as "chief engineer in charge of the building department," purporting to authorize the construction of a canopy, and the canopy involved in this controversy is within the limitations fixed in this permit. On October 17, 1921, the Blank Realty Company filed with the defendants, the commission of the defendant city, a protest against the construction of the proposed canopy, alleging, among other reasons therefor, that if the canopy is constructed it will cause great and irreparable damage to the business and property of the company, and that the permit is unlawful, an invasion of property right of the company, and is "an attempt to give to private people a franchise and right to use a part of the streets" for private purposes, and requesting a revocation of the permit. Julius Orkin, the other intervener, at the same time filed a similar protest. On October 18, 1921, the following resolution was adopted by the city council:
"Resolved, that the permit granted by the building department upon October 10, 1921, to World Realty Company to erect a canopy or permanent awning over the sidewalk around the east two-thirds of lot seven, block one-hundred and six, Original City of Omaha, be revoked."
On October 20, R. E. Edgecomb, as "chief engineer of the building department" of the defendant city, notified the construction company, to whom the permit had been issued, of the resolution, and that the canopy could not be constructed. The resolution of revocation was passed without notice to the plaintiff and without a hearing at which plaintiff was represented. At that time no material part of the canopy had been constructed. The actual work on the canopy upon the ground was not commenced until about January, 1922. The work of construction was under an inclosed shed, and neither the defendant city nor either of the interveners had knowledge of its construction until in March, 1922.
The questions presented for decision are: (1) Was there a lawful authorization for the construction of the canopy in question? (2) Can the authorities of a metropolitan city authorize such a construction in a public street and by so doing deprive adjoining and adjacent abutting property owners of their right to light, air and view over such a street to the material damage of such owners?
Omaha is a city of the metropolitan class. Its charter is subject to the limits of the Constitution and laws of the state. Const., art. XI, sec. 5. It is given authority and control over the streets and sidewalks to be exercised by ordinances. Comp. St. 1922, sec. 3489, subds. XII, XXI. Under this section the ordinance received in evidence which passed. There was a permit received in evidence which granted to the plaintiff the right to erect a three-story building on its property at the intersection of Douglas and Fifteenth streets in the city of Omaha, but such permit does not confer the right to construct a canopy out into the street. The fact that the plans had incorporated in them the proposed canopy in no way binds the city, as canopies are specially mentioned in the ordinance offered in evidence and require a special permit by a particular officer. The plaintiff recognized this fact, in that it subsequently applied for a permit to construct the canopy involved in the controversy, and without which the construction of the canopy could have subjected the person engaging in its construction to a prosecution for a violation of the very ordinance under which the plaintiff claims protection.
Not every invasion of or structure upon a public highway is unlawful, but that they may exist legally, the authority therefor must have its ultimate source in the legislature of the state within whose jurisdiction the highway exists. "The legislature of the state represents the public at large, and has full and paramount authority over all public ways and all public places." 1 Elliott, Roads and Streets (3d ed.) sec. 540. The legislature usually delegates this power to control and regulate streets to the local authorities. How far these powers extend in a given case must be determined from the charter or enactment. 1 Elliott, Roads and Streets (3d ed.) sec. 540; 2 Dillon, Municipal Corporations (4th ed.) sec. 656, and cases cited in...
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