John A. Tolman & Co. v. City of Chicago
88 N.E. 488
Ill.
1909
Check Treatment
Mr. Justice Dunn

delivered the opinion of the court:

It is conceded by appellant that on the -showing made in the record the platforms in front of the shipping doors are unlawful, and it does not claim any right to maintain them. Appellant’s "contention is that the temporary use of the sidewalk for the delivery of goods to and from its building is a legitimate use of the street, and is not inconsistent with the right of the public so long as such use by the appellant is reasonable. The relief sought by the bill is not the establishment of the right to use the skids as it has heretofore used them, but is the prevention of interference with their reasonable use.

The public has a paramount right to the use of the street in all its parts. That right is the right of all persons to pass over it freely and without impediment whenever they have occasion to do so. The right is not, however, an absolute right in every person at all times. It is subject to such incidental and temporary or partial obstruction as manifest necessity may require. The use of the street by one person or company of persons passing along it interposes an obstruction to any other person or persons occupying the same part of the street at the same time for the same purpose. Large numbers of persons using the street merely for passage on foot may, and frequently do, impede the free and uninterrupted use of the street by other large numbers going in different directions or desiring to go faster or slower. The stopping of persons on the sidewalk or vehicles in the street for any temporary purpose interferes with the free use of the sidewalk or street by others. The lawful use of the streets by street cars and railroads interferes with such use by other vehicles and by foot passengers. The rigdit of a person using a street upon which a railroad has been lawfully constructed is the same as that of the railroad company, but he must submit to the obstruction caused by the trains of the latter. The public right to the unobstructed use of the street in all its parts is, therefore, not absolute but relative.

“The owners of lots bordering upon streets or ways have the right to make all proper and reasonable use of such part of the street for the convenience of their lots, not inconsistent with the paramount right of the public to the use of the street in all its parts.” (McCormick v. South Park Comrs. 150 Ill. 516.) The improvement, erection or repair of buildings and the construction of drains and sewers therefor, or of other adjuncts, frequently cause necessary obstructions upon public highways. The excavation of an area in the sidewalk adjoining a building in process of erection is not an unlawful encroachment on the street. (City of Chicago v. Robbins, 67 U. S. 418; Commonwealth v. Passmore, 1 Serg. & R. 217; Clark v. Fry, 8 Ohio St. 358.) Placing building materials in the street preparatory to building on the land is not Unlawful if the street is not improperly obstructed and the materials are removed within a reasonable time. (Van O’Rinda v. Rothrop, 21 Pick. 292; Mallory v. Griffey, 85 Pa. 275; Hundhausen v. Bond, 36 Wis. 29; Raymond v. Kiseberg, 84 id. 302; King v. Ward, 4 A. & E. 405 ; Rex v. Jones, 3 Campb. 230.) The delivery of merchandise, fuel or other supplies at business and other houses on a street is a necessary incident to the use of a public highway. The streets of a city would be of comparatively little use if merchants could not deposit their goods in them temporarily in their transit to the storehouse. A merchant may use and temporarily obstruct the street and sidewalk in front of his premises for loading and unloading goods when not restrained by ordinance, if he does not unnecessarily or unreasonably interfere with their use by the traveling public. (Welsh v. Wilson, 101 N. Y. 254; Halsey v. Rapid Transit Street Railway Co. 47 N. J. Eq. 380; Tompkins v. North Hudson Railroad Co. 63 N. J. L. 322.) Skids may be used in a reasonable manner, so as not to unnecessarily encumber or obstruct the sidewalk, for the purpose of facilitating the removal of the merchandise. Welsh v. Wilson, supra; Mathews v. Kelsey, 58 Me. 56; Jochem v. Robinson, 66 Wis. 638, and 72 id. 199.

The extent of the right thus to interfere with the public’s free and uninterrupted enjoyment of the use of the sidewalk depends upon the necessity of the case so far as the individual is concerned and the reasonableness of the use against the public. .It is said in Flynn v. Taylor, 127 N. Y. 596: “The owner of land abutting upon a public street is permitted to encroach on the primary right of the public to a limited extent and for a temporary purpose, owing to the necessity of the case. Two facts must, however, exist to render the encroachment lawful: (1) The obstruction must be reasonably necessary for the transaction of business; (2) it must not unreasonably interfere with the rights of the public. * * * The foundation upon which the exception seems to rest is, that it is better for the public to suffer a slight inconvenience than for the adjacent owner to sustain a serious loss. Any unnecessary or unreasonable use of a street, however, is a public nuisance.” The necessity for using the sidewalk need not be absolute—it is sufficient if it be reasonable. (Jochem v. Robinson, supra.) In Commonwealth v. Passmore, supra, the court said: “It is true that necessity justifies actions which would otherwise be. nuisances. It is true, also, that this necessity need not be absolute,—it is enough if it be reasonable. No man has a right to throw wood or stones into the street at pleasure, but, inasmuch as fuel is necessary, a man may throw wood into the stre'et for the purpose of having, it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand and other materials may be placed in the street, provided it be done in the most convenient manner.” It is not sufficient, however, that the obstructions are necessary with reference to the business of the person who maintains them; they must also be reasonable with reference to the rights of the public. Callanan v. Gilman, 107 N. Y. 360. The agreed statement of facts shows that the use of skids prevents the storage of merchandise upon the sidewalk and enables appellant to remove it in from one-half to one-tenth of the time that would otherwise be required; that there is no other method by which it could be removed with less danger or obstruction to the public; that unless the use of skids or other mechanical appliances be permitted it would be impossible for appellant to move to and from its building the bulkier packages in which it deals, and it could not successfully prosecute its business but would practically be required to suspend the same; that skids are used only when reasonably necessary in the conduct of appellant’s business, and that there is no other method of doing the work with less inconvenience to the public. It thus appears that, so far as the thing here in controversy— the use of the skids—is concerned^ it is advantageous to the public convenience. The public is put to less inconvenience by their use than without them. In order to justify appellant’s use of the skids it must appear that their use is reasonably necessary in the conduct of its business and that it is reasonable so far as the public is concerned. That it is necessary to appellant’s business is agreed to. Whether or not its use of the skids is reasonable as against the public is a question of fact. That their use to some extent is so reasonable is clear from the record. Whether their use to the extent to which they have been used by appellant is reasonable is a question not now before us to decide. Appellant seeks an injunction only against being denied the privilege of using them reasonably. It is clear that appellant may rightfully use the skids to some extent. Their use is not, of itself, unlawful or a nuisance, but is lawful. If the manner or extent of that use, the place in which it is exercised or the conditions surrounding it are such as to make it unlawful by reason of its being unreasonable, that is a question of fact to be determined in a judicial proceeding. (Laugel v. City of Bushnell, 197 Ill. 20.) The city council, in the exercise of its general control over the streets, has the right to regulate the use of skids, and may fix the time and place, conditions and circumstances,thereof, but its executive officers have no authority to interfere with appellant’s conduct of its business except in the enforcement of an ordinance or in pursuance of judicial process.

The appellees have cited section 221 of the Criminal Code, declaring it to be a public nuisance “to obstruct or encroach upon public highways,” etc., and paragraph 11 of section 1 of article 5 of the City and Village act, giving to the city council power “to prevent and remove encroachments upon” the street. It is their position that whatever interferes with the uninterrupted, unimpeded and unobstructed use by the public of any part of the highway is a nuisance. We have seen that this position is unfounded and that there are numerous obstructions of the public use which are lawful. The cases cited by appellees in support of this proposition are all cases of permanent obstructions in the street, constituting purprestures therein. If the action of the superintendent of streets and commissioner of public works had been directed against the permanent platforms projecting in front of the shipping doors these decisions would apply, but they do not apply to the skids.

The judgment of the Appellate Court and the decree of the superior court will be reversed and the cause remanded to the latter court, with directions to enter a decree enjoining the appellees from preventing or interfering with the reasonable and necessary use by appellant of skids in' the delivery of merchandise to and from the premises in question across and over the sidewalks contiguous thereto.

Reversed and remanded, with directions. •

Cartwright, C. J., Hand and Scott, JJ., dissenting.