Livingston v. Wolf

136 Pa. 519 | Pennsylvania Court of Common Pleas, Cumberland County | 1890

Opinion,

Mr. Justice Williams :

The principle that matters of merely local concern should be left to the control of the people to be affected, is recognized and acted upon in our system of government. To this end cities and boroughs have their legislative as well as their administrative officers, and the municipal legislature may make laws in regard to all subjects of a municipal character, and enforce them by appropriate penalties. The local government must keep within the limits that bound its jurisdiction as they are defined by the constitution and laws of the state; but, subject to these restrictions, it may determine what is best calculated to promote the security, the comfort, and the convenience of the inhabitants. Among the subjects of municipal control is that of the opening, vacating, and management of streets and alleys. The city or borough may decide when and where it will open streets, what shall be their width, and how much of that width shall be devoted to a carriage way, and how much to footwalks. It may say where trees shall be planted within the street limits, where and how hitching posts shall be set, telegraph poles erected, or passenger railways built. Its decision in such matters may subject a few persons to some inconvenience, or possibl}r to some substantial loss, but it has the power to decide on such subjects. The foot Avays no less than the carriage ways are under municipal control, and the authorities may determine the extent to which the walks and pavements may be obstructed by cellar doors, door-steps, awnings, projecting Avindows, cornices, and the like. This power must be exercised by regulations that are general and uniform, that are reasonable and certain, and that are in conformity with the constitution and laws. When so exercised, it is binding on all the inhabitants of the municipality. These general propositions are supported by many cases, among which are Paul v. Carver, 26 Pa. 223; Commonwealth v. Rush, 14 Pa. 186; Barter v. Commonwealth, 3 P. & W. 259; Philadelphia’s App., 78 Pa. 33; Allegheny v. Zimmerman, 95 Pa. 287; Commonwealth v. Hauck, 103 Pa. 536; In re Ruan St., 132 Pa. 257. That the courts must judge of the reasonableness of the action of the municipality, and that such action is not binding, if it is unreasonable, was held in Kneedler v. Norristown, 100 Pa. 368; and that its action must be general, bearing equally upon the citizens, was ruled in Reimer’s App., 100 Pa. 182.

In this case, the obstruction complained of is a window projecting from the second story of defendant’s dwelling into the street. The plaintiff alleges that the obstruction is unlawful, and asks that it may be prevented by an injunction. The defendant sets up a borough ordinance as his authority for building the window, and denies that it inflicts any substantial injury upon the plaintiff. The controlling question, therefore, is whether the borough of Carlisle has authorized the construction of the window. If it has, the decree appealed from was rightly made. If it has not, then the extent of the plaintiff’s injury, and the other questions raised, must be considered.

It is not denied that an ordinance was duly passed by the borough council on the 20th May, 1852, relating to this subject. It provided, among other things, that all porches, cellar doors, and door-steps should be so built as not to extend into any street, having a breadth of sixty feet, beyond four feet three inches, or a proportional distance in narrower streets. It also prohibited the construction of “ any bulk or jut window ” projecting into the street more than twenty-eight inches. In 1869 this ordinance was amended so as to reduce the distance that a cellar door might extend into the street to three feet and nine inches, and that for door-steps to three feet and six inches; but the provision for “ bulk or jut windows ” remained at twenty-eight inches. The master finds that the defendant’s window extends but twenty-seven and one half inches over the street line. It is therefore within the limit fixed by the ordinance, and, as to the public, within its protection. It is true the ordinance does not expressly declare that lot owners may occupy three feet and nine inches of the street with their cellar-ways, or project their jut or bay-windows to a distance of twenty-eight inches over the street; but, -by forbidding the extension of such structures beyond a fixed limit, it does, by clear and necessary implication, permit their erection within that limit. The window is therefore not an unlawful obstruction of the street, but a projection authorized by the ordinance of 1852.

In Reimer’s Appeal, supra, an injunction was granted restraining the erection of a projecting window, but it was because no valid municipal authority was shown for building it. An individual permit had been granted, but it was held that the use of the streets for such purposes must be regulated by rules of general and uniform application. The power to make such rules was not denied, but was clearly recognized. The principles that control this case may be stated thus:

1. Cities and boroughs have the power to permit, under regulations that are reasonable in character, and general in their application, the use of a portion of the highways for approaches to and for ornamental work upon buildings standing on the street line.

2. The borough of Carlisle has exercised this power by the ordinance of 1852, which is reasonable in its provisions, and general in its application.

3. The window complained of is within the limit of projection fixed by the ordinance, and it is consequently within its implied permission.

It follows that the projecting window is not an unlawful obstruction, but a lawful structure. If this conclusion could be regarded as doubtful, the decree ought nevertheless to be affirmed upon the finding of the master that the window caused no appreciable injury to the plaintiff.

The decree is affirmed; the costs to be paid by the appellant.