97 Neb. 343 | Neb. | 1914
Lead Opinion
In August, 1910, the First National Bank of Lincoln asked the mayor an'd city council for “a permit for tiie erection of the new First National Bank building, to be located at the southeast corner of Tenth and 0 streets, Lincoln, Nebraska.” It was stated in the application that “the drawings call for an areaway, same being forty-five feet long by five feet wide in the clear. This areawav would be located twenty-five feet from alley line on the Tenth street side of the building.” The permit was granted as requested and the building was erected. It was understood that this areaway was for the purpose of constructing a stairway to the basement of the building. After-wards the relator began this action in the district court for Lancaster county against these defendants, wlio are the mayor and council of the city of Lincoln, to compel them to cause the “open areaway in the public sidewalk in Tenth street, adjacent to the west line of lot 12, in block
Section 4475, Rev. St. 1913, provides: “The mayor and council shall have supervision and control of all public ways and public grounds within the city, and shall require the same to be kept open, in repair and free from nuisances.”
Section 4418 gives the city authorities power “to remove all obstructions from the sidewalk, curbstones, gutters and cross-walks at the expense of the owners or occupants of the grounds fronting thereon, or at the expense of the person placing the same there; and to regulate the buildings of bulkheads, cellars and basement-ways, stairways, railways, windows and doorways, awnings, hitching posts and rails, lamp posts, awning posts, and all other structures upon or over adjoining excavations through or under the sidewalks of the city.”
The sidewalk ordinance of the city of Lincoln provides: “Section 1. Hereafter there shall be reserved on each side of every street in the city of Lincoln, for sidewalks and for the cultivation of trees and grass, a space equal to one-fourth of the street from abutting lot lines: Provided, that on streets in paving districts, said space shall extend from the lot line to the curb line.
“Section 2. All sidewalks * * * in front and alongside of any,building in any part of the city where area-ways or cellars are in use under any sidewalk, and also in front of any lot used for any business purpose shall extend from- the line of the abutting lot to the curb line.
“Section 3. Sidewalks on business streets or portions thereof shall be constructed so as to incline upwards from the outer edge of the sidewalk toward the building or
“Section 7. No person shall be allowed to keep or use for vaults, areas, or other purposes, the space beneath the sidewalk included within the sidewalk lines of any street in this city, unless a permit therefor shall have been obtained from the city council; such permits, heretofore granted or hereafter to be granted, shall continue, or to be issued, only upon condition that the party receiving the same shall, as a consideration for such use and such privilege granted, build, maintain, and keep in repair a sidewalk over such space intended to be used for vaults, areas, or other purposes, and pay all damages that may be sustained by any person by reason of said sidewalk being in a defective or dangerous condition.”
“Section 9. Areas about windows opening through the sidewalk immediately adjacent to the buildings to admit light and air to a basement, shall be protected and covered by strong iron grating, the bars of which shall not be more than one inch apart, and so constructed that the same may be walked upon with safety, and of sufficient strength to hold any weight that would come upon the walk at this point. In order to prevent accidents, all hatchways, coal holes, or openings of,any sort through sidewalks shall be provided with strong iron or iron and glass coverings, with rough surface, and the entire construction of said areas, hatchways, entrances and opening shall be subject to the direction and supervision of the city engineer.”
“Section 11. It shall be unlawful for any person, firm or corporation to leave open any opening in any sidewalk, or suffer the same to be left or kept open, or suffer any sidewalk in front of his or its premises to become or continue so broken or otherwise defective as to endanger life ■or limb.”
In City of Plattsmouth v. Nebraska Telephone Co., 80 Neb. 460, it was contended that a city or incorporated town had no power to grant a telephone company the use of its ■streets, alleys and public grounds, but the court held that such power existed, and in the opinion it was said: “That ■the city may order the removal of poles which endanger the citizens because of a rotten condition, and protect its inhabitants against any conduct of the business which'endangers the public health or safety, is not a question open to dispute; but nothing of the kind appears in the record before us. As before stated, Main street is 100 feet in width. There is no evidence of a congested condition of the street or of any necessity from other causes for removing the defendant’s poles.”
The statute of Iowa requires the city authorities to keep the streets open and free from nuisances, and does not expressly authorize areaways and stairways through sidewalks, but the supreme court of that state decided: “Areas for light, arid basement windows, and descents are necessary, in order to carry on business in a city, and, if such excavations are properly guarded, * * ;* they do not, in themselves, constitute a nuisance.” Keyes, v. City of Cedar
The relator relies upon Chapman v. City of Lincoln, 84 Neb. 534, in which it was held: “Whatever space in a public street of a city is set apart for the use of the public as a sidewalk, the public have a right to use in its entirety, free from any and all unauthorized obstructions, and it is the duty of the mayor and city council to see that it is kept in that condition.” That was a correct statement of the law as applied to the facts in that case. An ordinance was enacted making it “unlawful for any person, persons or corporation to erect or maintain any booth, shed, stand or other obstruction upon the streets, sidewalks or sidewalk space of the city of Lincoln for the sale of fruit, books or other merchandise, or any article or thing of value, or to erect or maintain any shed or booth or stand thereon to be used for shining boots and shoes.” Chapman sought to enjoin the enforcement of this ordinance, and this court affirmed the judgment of the district
The question, then, is upon the construction of this sidewalk ordinance. As applied to the question before us, it must be conceded that the ordinance is not as- clear and definite as might be desired. The evidence shows a practical construction of the ordinance by the city. It appears that there are many basements in the business part of the city with entrances by basement-ways through the sidewalk, and that for 40 years this bank has maintained a bank building, with basement and a-basement-way through the sidewalk at this place which required a superficial opening in the sidewalk much larger than the one now in question. The word “area” has a somewhat elastic meaning. We find from Webster’s New International Dictionary that it originally meant “a broad piece of level ground.” In modern use it may mean: “(1) Any plane surface. * * * (2) The inclosed space on which a building stands. (3) The sunken space or court giving ingress and affording light to the, basement of a building. (4) A particular extent of surface.”
The word “areaways” in section 2 of the ordinance is plainly the equivalent of cellar or room under the sidewalk; such rooms must not interfere with the public use of the sidewalk. Section 7 requires that a permit shall be obtained before the space beneath the sidewalk shall be used .for private purposes. The covering which constitutes the sidewalk over such rooms must be built and kept in repair by the owners of'1 the rooms so used. By section 9 openings may be left around a window in a basement to
The matter of allowing and regulating entrances to basements through sidewalks is within the reasonable discretion of the city authorities. The evidence in this case does not show an abuse of discretion on the part of the mayor and council.
The judgment of the' district court is
Affirmed.
Concurrence Opinion
concurring in conclusion only.
It is elementary that an ordinance of a permanent character cannot be amended by a mete resolution of a temporary nature. It seems clear to me, therefore, that the permit granted by the council attempted to allow a violation of the ordinance of June 10, 1910. While there are many open areaways in the city, there is no proof that any have been constructed since the ordinance went into effect. The ordinance changed the policy of the city and showed the intention of its authorities that no uncovered openings should be thereafter allowed in sidewalks within prescribed limits. The evidence shows that a number of like applications have been denied since it went into effect, and that the permit to the First National Bank is the only one that has been issued.
An areaway is not usually considered a nuisance per se. It is permitted by the statute. In the absence of this ordinance, the city authorities would have power to permit it by resolution. The fact that a much longer area-way had been used in connection with the old bank building on the lot for many years, no doubt, had much weight with the city council in passing the resolution; but in my judgment the council should have amended the ordinance-if it desired to grant the permit.
The relator shows no special injury peculiar to himself independent of and different from that, if any, suffered by the public at large. No property right of his is affected, and there is ample space on the sidewalk at this point for public travel. The rule applies that one seeking a writ of mandamus to compel action by a public officer must show a special interest in the relief- sought and a clear right to the writ, or it will not be granted.
I therefore concur in the conclusion.