No. 23,618 | Minn. | Dec 28, 1923
Action to enjoin the defendant city and its officers from removing a concrete retaining wall constructed in front of her lot and concrete steps leading to her buildings. There was a temporary injunction. Upon final hearing the temporary injunction was dissolved and there was judgment for the defendants. The plaintiff appeals from the judgment.
The abutting owner owns to the center of the street, subject to the easement of the public, and may use it for a purpose compatible with the free use by the public of its easement, Town of Glencoe v. Reed, 93 Minn. 518" court="Minn." date_filed="1904-12-23" href="https://app.midpage.ai/document/town-of-glencoe-v-reed-7973161?utm_source=webapp" opinion_id="7973161">93 Minn. 518, 101 N. W. 956, 67 L. R. A. 901, 2 Ann. Cas. 594; West v. Village of White Bear, 107 Minn. 237" court="Minn." date_filed="1909-02-26" href="https://app.midpage.ai/document/west-v-village-of-white-bear-7974842?utm_source=webapp" opinion_id="7974842">107 Minn. 237, 119 N. W. 1064; Rost v. O’Connor, 145 Minn. 81" court="Minn." date_filed="1920-02-06" href="https://app.midpage.ai/document/town-of-rost-v-oconnor-7979661?utm_source=webapp" opinion_id="7979661">145 Minn. 81, 176 N. W. 166, 9 A. L. R. 1265; Pederson v. City of Rushford, 146 Minn. 133" court="Minn." date_filed="1920-06-11" href="https://app.midpage.ai/document/pederson-v-city-of-rushford-7979808?utm_source=webapp" opinion_id="7979808">146 Minn. 133, 177 N. W. 943, and cases cited; Dunnell, Minn. Dig. and 1916 and 1921 Supp. §§ 4182-4183, and cases cited. Whether a use is compatible, or is an obstruction, depends upon the character of the use by the abutter and the character of the street. What the municipality does in
The retaining wall encroaches 2£ or 3 feet beyond the property line upon the portion of the street between the sidewalk and the property line, commonly designated the inner boulevard.
By the charter the city council is given the care, supervision and control of the streets of the city. Charter, c. 8, § 1. It is given specific authority to “abate any nuisance, obstruction or encroachment upon the streets * * * of the city.” Charter, c. 4, § 5 (28).
The trial court finds upon sufficient evidence that the concrete wall and stairway
“Constitute an obstruction to said street and to public travel thereon and the right of the public and adjoining property owners to a full and unobstructed view upon said street, and that the same is also an encroachment upon said street to the extent of 2£ to 3 feet thereof; that the wall and stairway so erected abuts the sidewalk upon said street and will constitute an obstruction to the full and free use of said sidewalk, particularly in the winter time when the same will make possible and probable accumulations of*433 ice and snow by reason of its height and close proximity to such sidewalk.”
The finding could hardly be different. The council in the exercise of a legislative function determined the character of the street. The retaining wall and steps were rightly found an obstruction of the street of the character the city decided to have, and as a matter of law they were an encroachment upon it.
An old ordinance of the city, passed in April, 1895, instructed the street commissioners to direct the removal of all obstructions maintained in the streets. On August 25, 1922, the city council directed the street commissioner and city engineer to remove the concrete steps and retaining wall which are the subject of this litigation. A month later, when this order was about to be carried out, the’ temporary injunction issued.
The city authorities have not always prevented encroaching retaining walls and steps. The plaintiff complains that favors were shown. Granted that there were; the council may still insist with propriety that in the future encroachments may not be made. The obstruction and encroachment were in some way subject to removal.
It is the contention of the plaintiff, argued at length, with a thorough brief of the cases, that the steps and retaining wall cannot be removed by the city in the absence of a judgment in equity determining the rights of the parties and finding it entitled to such relief. We do not find it necessary to examine the scope of this doctrine. The plaintiff obtained permits from the city for the construction of her buildings. They showed no encroachment beyond the lot line and no obstruction of the street. There is evidence, which the court accepted as true, that the plaintiff was informed early in the improvement of her property, perhaps before it had really begun, that she would not be permitted to encroach upon the street with a retaining wall and steps. This is not a case where an encroachment or obstruction had been permitted upon a street, or had remained for a considerable period, and the city proposed to remove it summarily. The action of the city was preventive in its nature. It warned the plaintiff before or soon
Some other points are suggested in the brief of appellant. In our view what we have said disposes of the case, and the opinion should not be prolonged.
Judgment affirmed.