14 Neb. 265 | Neb. | 1883
This is an application for a mandamus to compel the mayor and council, the marshal, and street commissioner of the city of Omaha, to remove a certain frame building from 12th street in said city. The relator states in his
There are other allegations as to the obstruction of the street as to the public at large, to which it is unnecessary to refer. A number of the ordinances of the city are also set out in the application, which do not require notice.
To warrant the court in granting a mandamus, it must appear that the relator has a clear legal right to the performance by the respondents of the particular duty sought to be enforced. Anderson v. Cobson, 1 Neb., 172. State v. School Dist., 8 Id., 94. High on Ex. Legal Rem., § 10. And it must also appear that he has no adequate remedy at law.
The application is defective in both of these particulars, and fails to state facts sufficient to entitle the relator to the writ.
Whether this court would control the action of the mayor and council of a city of the first class, in regard to the temporary removal of buildings into the street, is not now before the court, and we express no opinion thereon. It is very clear, however, that the application fails to state all the facts as to the removal of the building, and it was conceded in the argument of the case that the removal was temporary and for the purpose of enabling the bank to erect a new building on the site formerly occupied by the wooden building. And it has erected and nearly completed such building.
In Com. v. Passmore, 1 Serg. & Rawle, 217, the supreme court of Pennsylvania says: “Necessity justifies actions which would otherwise be nuisances; this necessity need not be absolute — it is enough to 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 street for the purpose of having it carried into the house, and it may lie there a reasonable time. So because building is necessary, stone, brick, lime, sand, and other materials may be placed in the street, provided it be done in the most convenient manner.”
In Rex v. Ward, 4 Ad. & El. 405, Lord Denman, speaking in reference to a board erected for repairing a house, said: “The board is placed for the safety of those possessing the right of way; it protects them from inevitable danger; if it leaves them a free passage, and leads them another way, the whole street is necessarily obstructed. Every way to which houses adjoin must be considered as set out, subject to those occasional interruptions which resemble the temporary acts of loading coal in Keels, alluded to in Rex v. Russell, 6 B. & C., 566.”
In Clark v. Fry, 8 O. S., 373-4, the supreme court of Ohio says: “Even the use of a highway for mere transit by one part of the public may, at the time of a multitude upon it, oppose a temporary obstruction to the passage of another part of the public. A company of persons stopping and standing on the pavement of a street with their wagons or carriages, for mere temporary purposes of business, interpose impediments to the free and uninterrupted transit upon a public highway. The delivery of freight, and
Temporary obstructions in a street which are reasonable and necessary, for the erection of a building upon an adjacent lot, do not constitute a nuisance, provided they are not unreasonably prolonged. Such obstructions are not invasions of the rights of the public to the use of the street, but merely incident to or a limitation on such right; but are justified only so long as they are reasonably necessary. The party placing the obstructions therein, however, will not be justified in leaving the street in an unsafe condition. One of the principal grounds of complaint in this case is the obstruction of the sidewalk, thereby causing people to pass on the east side of the street, and away from the relator’s place of business, but there are no facts stated showing such obstruction to be unnecessary. As to the removal of the building into the street, it is evident that it was placed there temporarily, and there is no allegation that it was not so removed with the consent of the proper public authorities. The facts stated in the application do not. show the obstructions to be a nuisance. The writ must be denied.
'Writ denied.