135 Ky. 126 | Ky. Ct. App. | 1909
Opinion of the court by
Reversing.
The town of Carlisle, county seat of Nicholas county, was laid out in 1816. A plot of the town was then recorded in the county clerk’s office, showing location and width of streets. The town is now a city of the fifth class, with a population of less than 2,000. The part of the town occupied by business
• In addition to the foregoing, the proof discloses the following facts: Many other buildings in the town on Main street and other streets had steps extending out on the pavements. On this lot where plaintiff erected his house there formerly stood an old stone building used as a store for many years. It had stood there longer than the memory of the oldest inhabitant. It was built on the property line also. There was a stone step 18 inches wide, 6 or 8 inches high, and 5 feet long in front of it and extending for its full length and width on the pavement. Just south of that step there was a cellar door in the pavement next to the building. It was a double wooden door, slanting from the pavement to the building, being some 2 1-2 feet higher at the building than at the pavement. On its south side it was much higher above the surface of the pavement than at its north side. The door extended out onto the pavement four.
Under these circumstances, were the plaintiff’s steps a purpresture, and a public nuisance, which the town might abate or prevent, and which it ought to prohibit. It is old and familiar law that the streets, including the pavements, of a town, belong to the municipality for the use of the public traveling upon them for their whole length and width; likewise, that any permanent structure built upon any part of the public streets so as to interfere with their use by the public for travel may be per se a nuisance, and may be abated by the municipality, or be abated by the courts at the instance of the town. But it is not true that the municipality and the traveling public have the right to the exclusive use of the public streets. The owners of abutting lots have rights in the streets in addition to those enjoyed by the general public, and it may be in spite of their rights. For example, the abutting owner has a particular easement in the street immediately fronting his lot, or leading to it, of ingress and egress, to a’ not unreasonable extent, although the exercise of his right might interfere with the public use. If it were not so, then towns could not exist, for the title to the street would in effect, or could, absorb the value of the abutting lot as* a city lot. This right of ingress and egress must be exercised in a reasonable manner, so as to interfere not excessively with the public right of travel. It will vary according to the circumstances of the particular
The general rule is fairly summarized in the following paragraph from Dillon on Municipal Corporations (volume 2, Sec. 734): “The owners of lots bordering upon streets or ways have or may have in other respects a right to make a reasonable and proper use of the street or way. What may be deemed such a use depends, in absence of legislative or authorized municipal declaration, much upon the local situation and public usage — that is, the use which others similarly situated made of their land— this being evidence of reasonable use. Conformably to these principles, it was held that common and well-established usage in the city of Boston justified the owner of the land in erecting thereon warehouse's on the line of the streets or ways with doors or win
The Supreme Court of Pennsylvania had our question before it in the Commonwealth v. First National Bank of West Newton, 207 Pa. 255, 56 Atl. 437. West Newton was a town about the size of Car-lisle. The controversy was as to the right of a property holder to construct steps on the sidewalk of Main street, a street 42 feet' wide, practically where other projections of like character had existed to a former building. The steps extended two feet nine inches on a sidewalk seven feet wide. The court observed:
“In the absence of municipal regulation, lot owners may for purposes of necessity," ornament, or convenience partially obstruct a highway in a reasonable manner, so as not to prevent the use of the highway by the public; and the municipal authorities may by ordinance or otherwise regulate the manner of this public use and the ornamentation. What is a reasonable exercise of this discretion depends on the cir cumstances.”
The same court in Livingston v. Wolf, 136 Pa. 519, 20 Atl. 551, 20 Am. St. Rep. 936, said:
In Georgetown v. Hambrick, 127 Ky. 43, 104 S. W. 997, 31 Ky. Law Rep. 1276, 13 L. R. A. (N. S.) 1113, this court declared that while a municipality has control of its streets and sidewalks, and may regulate the width of each, it must do so in a reasonable manner, and not arbitrarily; that the abutting lot owner has certain rights therein that must be respected, and can not be capriciously or unreasonably curtailed.
In Commonwealth v. Borough of Beaver, 171 Pa. 542, 33 Atl. 112, the Supreme Court of Pennsylvania said:
“The general proposition that the public have a right to travel on foot' or in vehicles over every portion of the highway is modified largely by exceptions.
In Commonwealth (City of Allegheny) v. Zimmerman, 95 Pa. 292, 40 Am. Rep. 649, Mercur, J., in delivering the opinion of the court, says: ‘So shade trees may stand between the sidewalk and the central part of the street without constituting a nuisance per se.’ The mere partial obstruction of a street, when in fact such obstruction does not interfere with the public use, does not create' a nuisance. * * * The right to partially obstruct a street - does not appear to be limited to cases of necessity. It may extend to cases of convenience or ornament, provided it does not unnecessarily interfere with public travel.”
Noticing some of the adjudged cases cited by appellee, and which seems to be the most persuasive authority cited to sustain the judgment in this case, we find that the expressions most strongly supporting appellee’s contention are dicta, or turn upon other facts not here present. For example, People v. Harris, 203 Ill. 272, 67 N. E. 785, 96 Am. St. Rep. 304, was a mandamusvto compel certain municipal officers to remove an obstruction consisting of a bay window. An ordinance of the city permitted lot owners to appropriate three feet of the pavement. It is not shown what the width of the street was, nor whether the encroachments were not unreasonable or usual in that city. The question turned on the power of the council to enact such general ordinance. It was held to be beyond its power. This excerpt will show the thought of the court:
“If bay windows may be authorized to be extended into the street eighteen inches when near the ground, then why not cities authorize property holders owning-properties on each side of the street to cover the entire street, so long- as they will place their projections and obstructions high enough that the tallest man in the community, or the highest wagon or the biggest load that may be conceived of, may pass readily? It seems to us the very suggestion carries with it its own answer, and that there is no safe field of speculation other than to keep within the limits placed by the books, by saying that the streets in the entirety are public properties, exclusively for public use, and that
Yet the fact is that no city enforces the ironclad doctrine announced. Cornices, awnings, shade trees, hitch posts, cellar openings, coal holes, gratings to protect windows, door sills or single steps, shutters, show windows a few inches wide, all structures of a permanent nature, and tradesmen’s exhibitions of wares in boxes, barrels, or otherwise, temporary, but so constant, as to be practically permanent matters, are universally suffered, and -are not found either dangerous or annoying to pedestrians. The question always comes back to the point: Are they unreasonable and do they make the street unsafe for the public use? In Parker v. Mayor, 39 Ga. 725, 99 Am. Dec. 486, the city charter seems to have required the city authorities to keep the streets free from buildings, posts, steps, fences, or other obstructions or nuisances. The court said: “To this end it is the duty of the city authorities to remove any nuisance from the ■streets or sidewalks, and anything that endangers the life of a person passing along the sidewalk is a nuisance which they are bound to abaté.” We are not prepared to criticise that statement. Irvine v. Wood, 51 N. Y. 224, 10 Am. Rep. 603, was a case where a coal hole was excavated in the pavement, but left with a defective covering. The landlord and tenant of the premises were sued. The case opens with this statement : ‘ ‘ The defendants did not allege in their answer that the coal hole was constructed by any license from the proper city authorities. * * * It may then be treated as a nuisance, being an unauthorized excavation in the street. * * * Even if this hole was excavated on the street by permission of competent authority, the person who originally excavated it. was
The fact that more than 15 years prior to 1873 the owner of the lot had maintained an obstruction sub-, stantially at the same place, and not differing in character from that now sought to be removed, gave the present owner an easement to continue it, or another no more an obstruction. And the fact that others in • the same block, and in other blocks where the pavements were not so wide, were suffered, and had been for a great many years, to maintain similar partial obstructions, is evidence that such steps were not unreasonable, but were a common custom in that town. AYliat is common is generally known by all, and would seem not to be an unreasonable course. The town might have prohibited such steps by a general ordinance of uniform application. As it has not done so, unless it shows that the particular obstruction complained of is in fact a nuisance, and is an unreasonable use of the public way under the conditions shown to exist there, appellant ought not to be singled out for discipline merely to vindicate a previously unused power.
The judgment will be reversed, and the cause remanded, with directions to grant the injunction prayed for.