Flynn v. . Taylor

Yaw, J. The owner of land abutting upon a public street is permitted to encroach on the primary right of the public to a limited extent and for a temporary purpose, owing to the necessity of the case. Two facts, however, must exist to render the encroachment lawful : 1. The obstruction must be reasonably necessary for the transaction of business; 2. It must not unreasonably interfere with the rights of the public. (Callanan v. Gilman, 107 N. Y. 360; Welsh v. Wilson, 101 id. 254.) The foundation upon "which the exception seems to rest is that it is better for the public to suffer a slight inconvenience than for the adjacent owner to sustain a serious loss. Any unnecessary or unreasonable use of a street, however, is a public nuisance and is declared by statute to be a crime against the order and economy of the state. (Penal Code, § 385.) A remedy for the wrong against the public may be found in the indictment of the offender, or in a suit by the proper officer in behalf of the j)eople to compel him to ^abate the nuisance. (People v. Loehfelm, 102 N. Y. 1; People v. Horton, 64 id. 610; People v. Cunningham, 1 Den. 524; Atty.-Genl. v. Cohoes Co., 6 Paige, 133; Wood on 27uisances, § 729; Willard’s Eq. Jur. [Potter’s ed.] 389, 401.) Whenever any person sxistains a special and peculiar loss in consequence of an unlawful obstruction to a public street, he may maintain an action in equity in his own behalf for damages and an injunction. Such was the case of Callanan v. Gilman (supra), upon ■which the courts below relied in rendering judgment in this action and which we also regard as analogous and controlling. In that case, as in this, the obstruction consisted in unloading trucks over a sidewalk and pedestrians were forced by the *600 inconvenience to take the opposite side of the street. The proof of special damages sustained by that plaintiff was slight, but the court held that direct proof of peculiar damage was not needed if the circumstances showed it and that he suffered some special damages not common to persons merely using the street for passage was declared to be too obvious for reasonable dispute. The right to maintain the action does not depend on the amount of the special damage provided the plaintiff suffered some material injury peculiar to himself. (Pierce v. Dart, 7 Cow. 609.) We think that in a populous city whatever unlawfully turns the tide of travel from the sidewalk directly in front of a retail store to the opposite side of the street, is presumed to cause special damage to the proprietor of that store because diversion of trade inevitably follows diversion of travel. The nature of this case was such that the amount of damages could not be shown and hence the remedy at law would not only be inadequate, but would lead to a multiplicity of suits. While the defendant was doubtless careful to interfere with the rights of the public no more than was necessary for the convenient transaction of his business with the facilities that he had, still he could not lawfully supply the defects in his premises by virtually monopolizing the sidewalk for several hours every day. As the court said in Rex v. Russell (6 East, 427), he “ coidd not'legally carry on any part of his business in the public street to the annoyance of the public,” nor could he “ eke out the inconvenience of his own premises by taking in the public highway.” (Rex v. Jones, 3 Camp. 230.) Whether a particular use of a street is an unreasonable use or not is a question of fact depending on all the circumstances of the case. (Hudson v. Caryl, 44 N. Y. 553; St. John v. Mayor, etc., 6 Duer, 315; Wood on Nuisances, § 251.) The trial court found as a fact that the defendant’s use of this sidewalk was an unreasonable interference with the passage of the public along the same. Hence he was properly held guilty of creating a nuisance, for the habitual use of a sidewalk or highway in an unreasonable manner to the serious *601 inconvenience of the public is a nuisance, per se. (16 Am. & Eng. Encyc. of Law, p. 937.) The evidence was ample to support the finding, as the use of the sidewalk by the defendant was systematic and exclusive during a substantial part of the business day. The primary purpose of the sidewalk was violated and the people who wished to use it to walk upon were compelled to walk around through the street and avoid the passing vehicles as best they could. This is scarcely denied by the learned counsel for the defendant, who contends that no unreasonable use or occupation of the sidewalk was shown so far as the plaintiff is concerned and that he cannot complain, although the public might. It is true that no direct interference with the plaintiff’s premises or business was shown. The pecuniary loss to him was caused by the indirect effect of the obstructions to the sidewalk upon the public; but when an unreasonable use of a public highway is shown and it also appears that such unreasonable use causes special damages to an individual, he has a personal right of action to compel the abatement of the nuisance. (Doolittle v. Supervisors, etc., 18 N. Y. 155 ; Corning v. Lowerre, 6 Johns. Ch. 439; Spencer v. London & B. R. Co., 8 Simons, 193; Sampson v. Smith, Id. 272; Crowder v. Tinkler, 19 Vesey, 617.) While the general welfare is promoted by manufactures such as the defendant carries on and they should not be interfered with for light or trivial causes, still the right of the public to the use of the sidewalk is paramount and he must so arrange his business as not unreasonably to interfere with it. The decree against him conforms in every respect to the precedent established by this court in Callanan v. Gilman (107 N. Y. 360, 373), when it modified the judgments of the courts below by restraining against an unnecessary or unreasonable obstruction. While the language of the injunction is somewhat indefinite, owing to the care taken not to interfere with important private rights, still a reasonable man will have little difficulty in determining what is a reasonable use of a public street. A prudent man will resolve doubtful questions in favor of the public and against himself, and the wrong to the *602 public is the basis of the plaintiffs right to relief, although a special injury to himself was also required before he could succeed. We see no reason for reversing this judgment which is,, therefore, affirmed, with costs. All concur. Judgment affirmed.