121 Ky. 367 | Ky. Ct. App. | 1905
Opinion by
Reversing.
In 1778 there was granted by Virginia to Richard Henderson & Co. a body of land in Henderson county, Ky., embracing what is now the city of Henderson. In 1797 Henderson & Co. laid out the town of Henderson, including Water street, which runs next to the Ohio river, reserving a strip of ground the whole length of the town, lying between Water street and the river. The streets and strip of ground were dedi
The authorities of a municipal corporation hold the public ways of the city in trust for the use of the public, and can not sell or lease them for private use. A lease by a city to an individual of the streets or public ways of the city for private use confers no authority upon the lessee to appropriate them to his use. (Buckner v. Trustees of Augusta, 1 A. K. Mar., 9.)
In Dillon on Municipal Corporations, sec. 660, it is said: “The king can not license the erection or commission of a nuisance, nor in this country can a municipal corporation do so by virtue of any implied or general powers. A building or other structure of a like nature, erected upon the street without the sanction of the Legislature, is a nuisance, and the local corporate authorities of a place can not give a valid permission thus to occupy streets without express power to this end conferred upon them by charter or statute. The usual'power to regulate and
Although the defendant’s structures may be a public nuisance, no one can maintain an action for their removal but the public, or some one who suffers special damage therefrom. It has been held that, where a property owner owns to the center of the street, he may maintain an action to have structures removed which are within the line to which his title -extends. But the structures in question are not within any part of Water street to which appellee has title under this rule, if it be conceded that his title runs to the center of the street, which is not shown. The structures are on the other side of Water street. They do not interfere in any way with the use of the street by appellee. The street remains as it was before the buildings were put up. The buildings are on ground where there was an abrupt bank of earth fifteen feet high before Labry filled it up. Appellee has sustained no special damage from the erection of the buildings. It is true they obstruct his view of the Ohio river to some extent, but it is not shown that they do him any real injury. It is charged that they increase the danger to the property by fire, but it seems that they did not affect the insurance in any way, and as to the danger from fire, it is, under the evidence, too slight to be ground for an injunction.
In High on Injunction, sec. 762, the rule is thus stated: “No principle of the law of injunctions is more clearly established than that private persons, seeking the aid of equity to restrain a public nuisance, must show some special injury peculiar to themselves, aside from, and independent of, the general injury to the public. And in the absence of such-special and peculiar injury sustained as a private-citizen, he will be denied an injunction, leaving the-public injury to be redressed upon information or-other suitable proceeding by the Attorney General in behalf of the public. Even in cases of unquestioned’ nuisance, if the party complaining shows no special injury to himself different from the common injury to the public, he is not entitled to an injunction. In accordance with these principles, where it is made to-appear, after injunction granted, that the injury suffered by complainant is sustained by him in common with every taxpayer, and the damage is therefore not special or peculiar, the injunction will be dissolved. And where the injury is doubtful and the evidence conflicting the relief will generally be withheld. ’ ’
Again, in sec. 763, it is said: “As illustrating the-general doctrine above, stated, denying relief by injunction against special nuisances in behalf of private-citizens who suffer no special or peculiar injury different from that which is inflicted upon the public-by the grievance in question, it is held that a private
Judgment reversed, and cause remanded for a judgment as herein indicated.