Kennedy v. City of Fargo

Bruce, Ch. J. (after stating the facts). The statute provides that “the board of city commissioners shall have power ... to lay out, open, alter, establish, widen, grade, pave, park, or otherwise improve streets, alleys, avenues, sidewalks; ... to prevent and remove obstructions and encroachments upon the same; ... to regulate the use of sidewalks and all stiuctures thereunder and to require the owner or occupant of any premises to keep the sidewalks in front of. or along the same free from snow or other obstructions; ... to declare what shall be a nuisance and abate the same.” See § 3818, Compiled Laws 1913. Section 3818, Compiled Laws 1913, also gives to the city commissioners the power “to declare what shall be a nuisance and abate the same. Section 14 of the Revised Ordinance of the city of Eargo provides “that no person shall injure or tear up any sidewalk or cross walk, drain or sewer or any part thereof, or dig any hole, ditch or drain in any street or sidewalk or public ground, or remove any gravel sod or sand from any street, without procuring a permit from the city engineer so to do.” Chapter 13 of these ordinances provides that “it shall be the duty •of the inspector of buildings ... to examine all certificates, permits, and notices required to be under this provision; to make complaint of all violation thereof. . . . The inspector of buildings shall have full power to pass on all questions arising under the provisions of this ordinance, relating to the manner of construction or material to bo used in the construction, altering, or repairing of any building. It then provides in § 2 for an application to be made to the inspector for .any “permit to erect, repair, change or alter any building or structure,” .and how such application shall be made, and that it shall not be lawful [482] to materially alter any building without a permit from the building inspector. Chapter 13 also provides among other things that “no stairway or open area way shall extend into the sidewalk more than 4 feet on streets having walks 14 feet wide, or more than 3 feet on streets having walks less than 14 feet wide,” and requires such stairway or open area- to be protected by strong iron or brass railings. The obstruction complained of was about 3 feet wide and left about 8½ feet clear space on the sidewalk. It appears, also, that subsequently to the plaintiffs’ application for a permit a resolution was passed, by such commission, forbidding the issuance of any more permits for area ways. There can be no doubt that the area way in question tends to- obstmet the sidewalk, nor can there be any question that there is extensive travel upon the walk, and that at the times when the trains block the crossing that travel is largely increased. The plaintiffs, however, contend that: (1) No permit was necessary under the terms of the ordinance. (2) A proper application for a permit wus made, but by reason of a clerical misunderstanding was not formally issued; that if a permit was refused, such refusal was unwarranted and arbitrary. It is first maintained that reference to permits is made only in connection with the construction or alteration of buildings and other erections, and that § 49 of the ordinance, being the section expressly providing for area ways, makes no reference to the necessity of any permit. We think, however, there is no merit in this contention. The ordinance provides for an application to be made to the inspector for a permit to erect, repair, change, or alter any building. Section 49 of the ordinance provides that “no stairway, or open area way shall extend into the sidewalk more than 4 feet, etc.,” and mentions stairways and open area ways in connection with porticoes, bay windows, and brackets. It is quite clear to us that when a person is erecting an area way and building steps and making a doorway in order that access may be had from the street to a room in the basement-of a house or building, that he is repairing, altering, and changing such building, even if he is not erecting such structure. In the case of State v. Kean, 69 N. H. 122, 48 L.R.A. 102, 45 At 1. 256, a bay window which projected from a building and which extend [483] ed into and over a street, but did not extend downward within 8 feet of the ground, was held to be an obstruction and to come within the term, “building or structure; ” while in the case of Karasek v. Peier, 22 Wash. 419, 50 L.R.A. 345, 61 Pac. 33, a fence was held to be a structure*. Here we have a stairway and a railing, and we have an alteration to the building by making a new entrance thereto, and by erecting a door therein, excavating around its foundation, and removing a part of its lateral support. We do not deem it material whether the fee to a street in a city and the fee to the particular street in question was in the public or not. The right of the public to prevent obstructions to the free passage there-over seems to exist in either event. Where the fee rests in the property owner there can be no doubt of his right to extend his cellar or foundation beneath the sidewalk. There can be no doubt, however, of the right of the city to require a permit before the building is so improved or the new structure is erected. Where, as in the case at bar, he seeks to appropriate a pari of the sidewalk, and to erect a permanent obstruction thereon, and to make an excavation therein, it is perfectly clear that the city has both the power to require a permit and to refuse the appropriation of the street and the limiting of the surface over which the public may travel if it so desires. The right of the public travel still exists, and the rights of the owner may grow less as the public needs increase. Allen v. Boston, 159 Mass. 324, 325, 38 Am. St. Rep. 423, 34 N. E. 519; State v. Kean, supra. The statute clearly gives to the board of the city commissioners the power to “lay out, open, alter, establish, widen, grade, pave, . . . streets, alleys, avenues, sidewalks, . . . and . . . to prevent and remove obstmctions and encroachments upon the same; .. . . and ... to regulate the use of sidewalks and all structures thereunder.” Nor are we concerned with the question whether the obstruction was a reasonable obstruction or not, or whether it was unreasonable for the public to insist on the full use of the sidewalk. The fact is that the public had the right to the use of the whole walk, and free from any obstruction whatever. There is, in fact, a wide distinction between an excavation under the walk, which does not interfere with its full use, and one which cuts [484] therein and materially lessens its area. Chapman v. Lincoln, 84 Neb. 534, 25 L.R.A.(N.S.) 400, 121 N. W. 596. It will he noticed that the charter of the city gives it the full power to declare and abate nuisances, and to prevent and remove obstructions and encroachments upon the street and the sidewalks; and we do not have to consider the many eases which deal with charters forbidding the granting of permits for permanent encroachments, or with the right of the city to restrict the public use and to allow obstructions to public travel. Here the public is merely seeking to assert its rights, and under a general grant of power, and the general rule undoubtedly is that “a municipality may require the removal of an obstruction on a street notwithstanding there is still ample room left for the passage of teams.” “This,” says Judge Elliot, “is the only safe rule; for, if one person can permanently use a highway for his own private purposes, so may all, and, if it were left to the jury to determine in every case how far such an obstruction might encroach upon the way without being a nuisance, there would be no certainty in the law, and what was at first a matter of small consequence would soon become a burden not only to adjoining owners, but to all the taxpayers and the traveling public as well.” Elliott, Roads, 3d ed. § 828; Lacy v. Oskaloosa, 143 Iowa, 704, 31 L.R.A.(N.S.) 853, 121 N. W. 542. We, indeed, find but few cases which deny this right to the public, and most of those which seem to deny it do not deny it at all; but merely concede the right to the municipality to grant permits or revocable licenses which they at any time may cancel or revoke. See Kellogg v. Cincinnati Traction Co. 80 Ohio St. 331, 350, 23 L.R.A.(N.S.) 158, 88 N. E. 882, 17 Ann. Cas. 242. Many of the other cases also are cases in which the sole question is whether the structure is in itself a common-law nuisance and whether a person may be indicted for maintaining the same. We held in the case of Ashley v. Ashley Lumber Co. post, 515, 169 N. W. 87, that a city could require the removal of. that which was erected in violation of its ordinance, even though the structure was not in itself a common-law nuisance. Here, if, as we have held, the public is entitled to the use of the whole walk, the obstruction is certainly a nuisance. Nor is there any merit in the contention that in the past the city of Fargo has been very liberal in its policy of allowing obstruction on its [485] streets and sidewalks. We are not here dealing with the authority to permit obstructions, but to forbid them. Upon the subject, however, it might be well to quote from Mr. McQuillin, where he says: “In many cities the streets have been subjected to a great number of invasions for the benefit and use of private owners, but in recent years it has been more and more realized by the courts how dangerous such invasions have been, and how if one person is permitted to use the street others will likewise have to be accorded equal privileges, with the result that, sooner or later, especially in the larger cities, the rights of the public and of adjacent landowners to use the streets will be seriously interfered with. Unquestionably many permits to encroach on the street are granted by nearly every municipality of any considerable size, which, if the question were litigated, would be held to be entirely beyond the power of the municipality.” See 3 McQuillin, Mun. Corp. p. 2873. For a clear and full discussion of nearly all, if not all, of the questions involved we refer to the case of Chapman v. Lincoln, 84 Neb. 534, 25 L.R.A.(N.S.) 400, 121 N. W. 596. In the case of Kennedy v. City of Fargo the order of the District Court is reversed and the temporary injunction is ordered to be set aside and vacated; while in the case of City of Fargo v. Kennedy the order is also reversed and the injunction, which is prayed for, is ordered to be issued and to be made permanent.