14 N.Y.S. 159 | New York Court of Common Pleas | 1891
Lead Opinion
The plaintiff sues as president of the Adams Express Company, an unincorporated association, to restrain the defendants, as officers of the municipality of Mew York, from doing an act which they allege is incumbent upon them by express and imperative provision of statute, namely, the removal of an obstruction and encroachment on a public street. The plaintiff had judgment, and the question here is whether, upon the uncontroverted facts of the case, that judgment is tenable in law. The evidence was quite conclusive that by the structure complained of the interests of adjacent proprietors sustained material injury; but that fact is of no importance in the litigation, since the defendants represent only the public right, and are not authorized to redress a mere private wrong. If the act from which they are restrained be not an unwarrantable invasion of a public right, the injunction properly issued, and individuals must be left to vindicate their own interests by the means which the law provides for their protection. The question, then, is, generally, whether the structure of plaintiff which defendants threatened to remove be an infringement of the public right; or, specifically,. whether it be an unauthorized encroachment on the highway. In the opinion of the learned trial judge, the structure is described as “about 110 ft. in length, the roof being constructed of light corrugated iron, supported by iron columns about 3J inches in diameter, placed from 12 to 12,1 feet apart, and next to and along the inside of the curb-stone; the lowest point of the roof being about 10 feet above the sidewalk.” The structure, therefore, covers the entire sidewalk for a distance of 110 feet, and the pillars upon which it rests are imbedded in the soil of the street. It is essentially a permanent structure. That such a structure, so situated, is an encroachment upon the highway, and, unless justified by competent authority, an unlawful encroachment, is an unimpeachable proposition of law. “It is clearly agreed to be a nuisance to dig a ditch, or make a hedge overthwart the highway, or to erect a new gate, or to lay logs of timber in it, or generally to do any other act which will render it less commodious.” Bac. Abr. “Highway,” E. “If a carrier carries an unreasonable weight with an unusual number of horses .it will be a nuisance to the highway, by the common law. So, if a man erects a gate across a highway, though it be not locked, but opens and shuts freely; or if he puts his wood-stack in the street before his house, and leaves sufficient passage for travelers.” Com. Dig. “Chimin,” A 3. “The primary use of a highway is for the purpose of permitting the passing and repassing of the public, and it is entitled to the unobstructed and unimpeded use of the entire width of the highway for that purpose;” and hence “the storing of a wagon in the highway is a nuisance.” Cohen v. Mayor, 113 N. Y. 535, 21 N. E. Rep. 700. “At common law, any encroachment upon a public highway was considered to be purpvesture,—that is to say, the malting of that several and private which ought to be common to many;” and, being a nuisance per se, “the defendant cannot avoid liability on the ground that the proof does not show that the people sustained or would sustain any actual damage, or that the inconvenience would be counterbalanced by the public benefit. ” People v. Vanderbilt, 28 N. Y. 396; King v. Ward, 4 Adol. & E. 384. “The public are entitled to the use and enjoyment of the whole of the highway, and no
In deference to the elaborate and able argument of the learned trial judge we have been at pains to collect the foregoing authorities; but in truth, the question in controversy is decisively determined against respondent by the adjudication of the court of appeals in Hume v. Mayor, 74 N. Y. 264, where it is held “that a permanent wooden awning or roofing covering the sidewalk: and resting upon posts bedded in the streets is an encroachment upon the streets, and a nuisance. ” The only distinction between the case cited and the case at bar being that there the roof was of wood and here it is of iron, argument is unnecessary to show that the difference in no degree impairs the-conclusiveness of the authority. It results, therefore, that the learned trial judge erred in finding as a legal inference from the uncontroverted evidence-that “the said awning is not an obstruction or an incumbrance upon the sidewalk or street.” Whether he was equally in error in the conclusion that “the said awning is not a nuisance,” depends upon the validity of the proposition from which he bases the judgment, namely, that the maintenance of the structure is authorized by law. That the ordinance of 10th May, 1886, if valid, suffices for legal justification of the structure, is too plain for controversy. The inquiry, then, is, liad the common council power to authorize the structure? That such power is not an original and inherent attribute of a municipal government is not a disputable proposition. In re Zborowski, 68 N. Y. 96; Davis v. Mayor, 14 N. Y. 506; People v. Kerr, 27 N. Y. 188. But the legislature, as representative of the sovereignty of the state, may either directly or by delegation to its local agencies authorize any use of a highway
The estoppel urged by respondent is clearly nugatory. The record discloses that in a former action between these parties it was stipulated by the corporation counsel that, if respondent would order its structure so as to conform it to the ordinance, respondent might maintain the structure as amended; and that the structure was modified accordingly at a considerable expenditure of money. Hence the learned trial judge found, as a conclusion of law, that “ the defendants are estopped by reason of the stipulation from claiming the awning to be an obstruction or incumbrance;” but “no sort of ratification can make good an act without the corporate authority.” Peterson v. Mayor, 17 N. Y. 449, 454. “A statute cannot be evaded by estoppel. ” Railroad Co. v. Van Horn, 57 N. Y. 473. It is a self-evident proposition that an act of a municipal corporation, void for want of authority to do it, cannot be validated by an estoppel incurred by the corporation; otherwise all limitations on the power of such corporation imposed by the legislature for the public good might be evaded at the mere volition of the corporation, Northern Nat. Bank of Toledo v. Trustees of Porter Tp., 110 U. S. 608, 619, 4 Sup. Ct. Rep. 254. The power of a municipal corporation has but one source,—the public will, as expressed by the legislature. Dill. Mun. Corp. § 89.
The learned trial judge finds that “the Adams Express Company is a common carrier,” and that “the awning is used as a protection to goods belonging to the public.” We are unable to perceive how these facts, if facts they be, are available to support the judgment. We understand that by virtue of its capacity as a common carrier Adams Express incurs peculiar obligations; but we are not aware that its character confers upon it exceptional privileges,—least of all, to invade a public right for its private aggrandizement. 27ow, can we assent to the proposition, even if it be relevant to the controversy, (which we do not perceive,) that because Adams Express by the awning protects the goods of many, no matter how many, it therefore protects the goods of the public? In the legal sense the public is an abstract entity, very different in nature from a multitude of individuals. The streets of 27ew York are the highways of the people, and their unobstructed and unimpeded passage is indispensable to the public convenience, and to 'the rapidly accumulating business of this active and teeming mart. Already they are inadequate to the necessities of the growing trade and the increasing population of the city, and we deem it urgently for the public interest that a claim to encroach upon and obstruct them should be challenged and defeated in the
Bischoff, Jr., J., concurs.
Dissenting Opinion
(dissenting.) The plaintiff, the Adams Express Company, under sanction of an express ordinance of the common council, erected a permanent awning, supported by iron posts, over the sidewalk in front of its place of business in this city. The power of the common council to grant this permission is derived from the act of the legislature (consolidation act 1883) by which it is enacted- that the common council shall have power to make ordinances to regulate the use of streets and sidewalks for signs, signposts, awnings, awning-posts, and other purposes. This seems to be both an ample and express grant of power to permit, under proper regulations, the use of the public streets for the purposes designated. The power is not inferred nor implied, but directly given. The legislature must be presumed to have known that in previous charters of the city it had made similar grants of power to the common council to make ordinances to regulate the use of the streets for awnings and awning-posts, and that such use had been open, common, and general in all the streets of the city from time immemorial. It was not necessary, therefore, that the legislature, to authorize such use, should do more than provide for its regulation by the city authorities. It is argued, however, that the whole effect of this enactment is destroyed by a prior provision of the same statute, by whicli the common council is authorized to make ordinances to prevent encroachments upon and obstructions to the streets, and that they shall have no power to authorize the placing or continuing of any encroachment or obstructions upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same. The contention is that this general enactment against encroachments upon the street overrides and nullifies the subsequent provision authorizing the erection of awnings and awning-posts. In construing the statute, the rules of interpretation require the courts to give effect to all parts of the act, so that all of them and all their clauses maybe operative. If the general intent of the act and the particular intent are in conflict, the particular intent is an exception to the general intent. These rules require that we should—First, interpret the provision empowering the common council to regulate the use of the streets for awnings and awning-posts as an express permission to use the streets for sucli purposes, otherwise that clause pf the statute will be wholly meaningless and' inoperative; and, second, for the same reason we must regard this clause as an exception to the general enactment against authorizing incumbrances and obstructions. In doing this we shall be violating no manifest intention of the act; for such intention, as'is evident from the act itself, was that awnings and awning-posts, signs arid sign-posts, were not encroachments nor obstructions such as the act was intended to prohibit. There is a wide distinction between .the erection of posts near the curb-stone to support an awning according to the immemorial usage of the merchants, traders, and shop-keepers of the city, and such obstructions and incumbrances by goods, bales, boxes, carts, and stalls which actually impede the passage of persons and vehicles. It was evidently against the latter and other and graver impediments that the general clause of the statute was directed, and not against the constructive incumbrance caused by awning-posts. It is not to be assumed that the legislature intended to violate the organic law, and appropriate any part of the public street to private use, but that, in making this enactmetit, it recognized"a use of the street sanctioned by immemorial custom, and not falling within any of the constitutional pro