Imagens das páginas

partial obstructions are occasionally al


Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; People v. Cunningham, 1 Denio, 524, 43 Am. Dec. 709.

The question, what obstructions amount to a nuisance, can in most cases be determined only by considering the size of the obstructions as related to the breadth of the highway and the amount of traffic thereon.

Savannah v. Wilson, 49 Ga. 476; Laing v. Americus, 86 Ga. 756, 13 S. E. 107; Maddox v. Cunningham, 68 Ga. 431, 45 Am. Rep. 500; Simon v. Atlanta, 67 Ga. 618, 44 Am. Rep. 739; White v. State, 99 Ga. 18, 37 L. R. A. 642, 26 S. E. 742; Kavanagh v. Mobile & G. R. Co. 78 Ga. 271, 2 S. E. 636, 78 Ga. 803, 4 S. E. 113; Savannah & W. R. Co. v. Woodruff, 86 Ga. 96, 13 S. E. 156; Daly v. Georgia S. & F. R. Co. 80 Ga. 793, 12 Am. St. Rep. 286, 7 S. E. 146; Augusta & S. R. Co. v. Augusta, 100 Ga. 703, 28 S. E. 126.

Every unauthorized encroachment upon a street is a public nuisance.

State v. Edens, 85 N. C. 572; Allegheny v. Zimmerman, 95 Pa. 287, 40 Am. Rep. 648; Nolin v. Franklin, 4 Yerg. 163; Tompkins v. Hodgson, 4 Thomp. & C. 435; 27 Am. & Eng. Enc. Law, p. 688; McDonald v. St. Paul, 82 Minn. 308, 83 Am. St. Rep. 428. S4 N. W. 1022; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Dubois v. Kingston. Norrell v. Augusta R. & Electric Co. 116 102 N. Y. 219, 55 Am. Rep. 804, 6 N. E. Ga. 316, 59 L. R. A. 101, 42 S. E. 466; 273; Weinstein v. Terre Haute, 147 Ind. Savannah, F. & W. R. Co. v. Gill, 118 Ga. 556, 46 N. E. 1004; Vason v. South Carolina 741, 45 S. E. 623; Western & A. R. Co. v. R. Co. 42 Ga. 635; Augusta v. Burum, 93 Atlanta, 113 Ga. 546, 54 L. R. A. 294, 38 S. Ga. 68, 26 L. R. A. 340, 19 S. E. 820; Laing E. 996; Salter v. Taylor, 55 Ga. 310; Savanv. Americus, 86 Ga. 756, 13 S. E. 107; Hannah, A. & G. R. Co. v. Shiels, 33 Ga. 601; bury v. Woodward Lumber Co. 98 Ga. 54, Speir v. Brooklyn, 139 N. Y. 6, 21 L. R. A. 26 S. E. 477. 641, 36 Am. St. Rep. 664, 34 N. E. 727; Smith v. McDowell, 148 Ill. 51, 22 L. R. A. 393, 35 N. E. 141; Elias v. Sutherland, 18 Abb. N. C. 126; Hibbard v. Chicago, 59 111. App. 470; Elliott, Roads & Streets, pp. 477, 478.


The authority of the city of Augusta over its streets is plenary.

Blome's Code, 308; Mt. Carmel v. Shaw, 157 Ill. 37, 27 L. R. A. 580, 46 Am. St. Rep. 311, 39 N. E. 584; 27 Am. & Eng. Enc. Law, p. 114.

The statutory remedy provided by § 4760 is adequate and complete, and therefore, under our law, exclusive.

Johnson v. Gilmer, 113 Ga. 1146, 39 S. E. 469; Brannan v. A. B. Baxton & Co. (Ga.) 50 S. E. 45; Booth v. Mohr (Ga.) 50 S. E. 173; Hitchcock v. Culver, 107 Ga. 184, 33 S. E. 35; Broomhead v. Grant, 83 Ga. 452, 10 S. E. 116; Ruff v. Phillips, 50 Ga. 139; Powell v. Foster, 59 Ga. 790.

Equity interferes to enjoin private nuisances, even, with reluctance, and for two reasons and two alone, to wit:

1. Irreparable damage, such as damage to health, etc.

Lowe v. Holbrook, 71 Ga. 565; DeGive v. Seltzer, 64 Ga. 425; Butler v. Thomasville, 74 Ga. 574; De Baughn v. Minor, 77 Ga. 815, 1 S. E. 433; Farley v. Gate City Gaslight Co. 105 Ga. 337, 31 S. E. 193; Code, 3863.

2. Where the offense is continuing, permanent, or constantly recurring, and equity enjoins to avoid multiplicity of suits.

Georgia Chemical, etc. Co. v. Colquitt, 72 Ga. 172: Kavanagh v. Mobile & G. R. Co. 78 Ga. 273, 2 S. E. 636; Russell v. Napier, 80 Ga. 79, 4 S. E. 857; Farley v. Gate City Gaslight Co. 105 Ga. 337, 31 S. E. 193.

Mr. George T. Jackson also for plaintiffs in error.

The intended use of the street was a nuisance.

[ocr errors]

An obstruction may be a nuisance, although it is not of a permanent character.

Elliott, Roads & Streets, pp. 480-482; 15 Am. & Eng. Enc. Law, 2d ed. p. 491; Com. v. Ruggles, 6 Allen, 588; State v. Laverack, 34 N. J. L. 204; Cole v. Newburyport, 129 Mass. 594, 37 Am. Rep. 394; Little v. Madison, 42 Wis. 643, 24 Am. Rep. 435, 49 Wis. 605, 35 Am. Rep. 793, 6 N. W. 249; Rex. v. Carlile, 6 Car. & P. 636; Com. v. Haines, 4 Clark (Pa.) 17; Hagerstown v. Witmer, 86 Md. 293, 39 L. R. A. 657, 37 Atl. 965; Ely v. Campbell, 59 How. Pr. 333; Costello v. State, 108 Ala. 45, 35 L. R. A. 303, 18 So. 820; Georgia S. & F. R. Co. v. Harvey, 84 Ga. 374, 10 S. E. 971; Davis v. East Tennessee, V. & G. R. Co. 87 Ga. 605, 13 S. E. 567; Western & A. R. Co. v. Cox, 93 Ga. 561, 20 S. E. 68; Richmond v. Sm 101 Va. 161, 43 S. E. 345; Hall's Case, 1 Vent. 169.

Equitable jurisdiction may be based upon the principle of restraining irreparable mischief, or of preventing vexatious litigation or a multiplicity of suits.

Messrs. E. H. Callaway and J. S. carnival upon the street.

Reynolds, for defendant in error:

Farley v. Gate City Gaslight Co. 105 Ga. 337, 31 S. E. 193.

A multiplicity of suits will be necessary to abate the proposed nuisances, unless a court of equity entertains jurisdiction to restrain the defendants from placing this

Georgia Chemical, etc. Co. v. Colquitt, 72

Ga. 172; Hill v. McBurney Oil & Fertilizer | becomes a public nuisance. What would be

Co. 112 Ga. 791, 52 L. R. A. 398, 38 S. E. 42; Powell v. Foster, 59 Ga. 790; Columbus v. Jaques, 30 Ga. 512; Lofton v. Collins, 117 Ga. 440, 61 L. R. A. 150, 43 S. E. 708.


an unreasonable time in cases where goods are being received into or delivered from a place of business, or where household effects are being carried into or out of a place of residence, might not be an unreasonable time where the obstruction is made necessary on

The remedy, in equity, to prevent the erection of a purpresture and public nuisance in a street or highway, is by injunc-account of buildings being erected upon proption on behalf of the people, sued out by the erty abutting the street. In all cases the attorney general or other proper officer. obstructions to public travel should be removed as soon as the reason for the obstruc tion has ceased. To continue to obstruct a public street with those things necessary in case of the erection of a building upon abutting property after the building has reached a stage where such obstructions are no longer necessary in carrying on the work would render the person so continuing the

People v. Vanderbilt, 28 N. Y. 396, 84 Am. Dec. 351; Re Frazee, 63 Mich. 396, 6 Am. St. Rep. 311, 30 N. W. 72; Com. v. Plaisted, 148 Mass. 375, 2 L. R. A. 142, 12 Am. St. Rep. 573, 19 N. E. 224; Atlanta v. Warnock, 91 Ga. 210, 23 L. R. A. 301, 44 Am. St. Rep. 17, 18 S. E. 135; Elliott, Roads & Streets, p. 485.

Mr. W. K. Miller also for defendant in obstruction liable as the maintainer of a


Cobb, J., delivered the opinion of the


1. Streets are primarily intended for the use of travelers, and a municipal corportion has no power, in the absence of express legislative authority, to allow a street to be used for any other purpose. Pol. Code 1895, § 745. Any permanent structure in a street which materially interferes with travel thereon is a public nuisance. Permanent structures which do not interfere with travel, and which are erected for public purposes, such as telegraph and telephone poles, and the like, are permissible. But no permanent structure of any character which interferes in the slightest degree with the right of travel upon the street is ever permissible where such structure is erected for purely private purposes. Temporary obstructions in a street are permissible under certain circumstances, even where the obstruction is for the benefit or convenience of an individual. A merchant may tem porarily obstruct a passage along a street. either in receiving goods from a carrier on the street, or delivering goods to such car rier. A householder may temporarily obstruct a street in moving his effects out of or into his house. It is impossible to enumerate all the cases in which the temporary obstruction of a street may be allowed, but the general rule is that, if the purpose for which the obstruction is creted is lawful. and the obstruction exists only for such a time as is reasonably necessary to accomplish the purpose which brings about the necessity for the obstruction, such an obstruction would not be a public nuisance. What would be a reasonable time is to be determined according to the circumstances of each case. If the obstruction continues for a time that is not reasonably necessary for the accomplishment of the purpose, then it

public nuisance. Any temporary obstruction in a public street is presumptively a public nuisance, and it is incumbent upon the persons responsible for the presence of such obstruction to show that it was placed in the street in furtherance of a lawful and legitimate purpose, and has not been continued any longer than was reasonably necessary for the accomplishment of this purpose. Persons who have places of business or residences upon lots abutting upon the street may temporarily obstruct the street under those circumstances, where it is necessary to completely enjoy the rights and privileges incident to ownership of property so situated. Persons who own vacant lots abutting upon a street may temporarily obstruct the street whenever necessary to improve such property by the erection of buildings thereon, but no such necessity can ever exist when upon the property to be improved there is ample room for the deposit of all material to be used in the building and the carrying on of all work essential to its construction.

The question to be determined in the present case is whether a street fair of the character described in the petition would be such an obstruction of a public street as would make it a public nuisance. It would not be a permanent obstruction, for it is only to continue one week. Being a temporary obstruction only, it is to be determined whether it results from a lawful purpose. The obstruction is purely for private gain. The fact that the promoter of the enterprise is a military company which is a part of the state mititia does not make it one inaugurated for a public purpose. It is to occupy not more than one half of the street. But the public is entitled to the whole of every street as against anyone who places obstructions therein for other than a law ful purpose. Com. v. Ruggles, 6 Allen, 588; 1 Wood, Nuisances, 3d ed. § 250. The

tive authority permitting it. In other
words, the enterprise sought to be carried
on in the street would, if permitted, be
nothing more or less than a public nuisance,
and public nuisance of a most aggravat-
ing character. See Rex v. Carlile, 6 Car. &
P. 636; State v. Laverack, 34 N. J. L. 204;
15 Am. & Eng. Enc. Law, 2d ed. pp. 499,
500; Elliott, Roads & Streets, 2d ed. § 648.
There are some old English cases which
hold that a fair in a highway was per-
missible, but an examination of those cases
will show that the ruling in each was based
upon the existence of an immemorial cus-
tom. See Elwood v. Bullock, 13 L. J. Q. B.
N. S. 330; King v. Smith, 4 Esp. 109.
sides, the old English fairs were very differ-
ent enterprises from the one described in the
present petition.

power over streets, given to municipal of such material, as it may prescribe and corporations under the ordinary grants in approve, and on such terms and conditions municipal charters, does not authorize the as it may designate; or the city council of municipal authorities, even by express or Augusta, in its discretion, may declare the dinance, to permit the erection in streets same vacant and abandoned as a street, and of temporary obstructions for purely private donate the same to a use which, in their gain. The enterprise described in the peti- opinion, will be of advantage or utility to tion is not in any sense a public enterprise. the commercial or business interests of the It is merely a scheme of private individuals city, on such terms as the city council may for pecuniary gain, and the use of the street, prescribe." It is claimed that this confers either in whole or in part, has not as a bosis upon the city authorities the power to any purpose which the law would recognize vacate a street and use the land for any as lawful, in the absence of express legisla-purpose that may be beneficial to the commercial interests of the city. Let this be conceded. The further contention is made that the power to vacate altogether and for all time carries with it the power to vacate in part and for a limited time. But the exercise of this power is dependent upon the city council having reached the conclusion that the street is no longer of public utility, nd before the power to vacate can be exercised it must appear that it is the opinion of the council that the street is no longer of public utility. It not only does not appear that it is the opinion of the city council that the portion of Broad street where permission was granted to hold the Be-street fair has ceased to be of public utility, but it appears from the petition that Broad street is the principal and most important business street in the city, and the use of the street for the fair was limited to one week. The present record does not present

2. It is therefore to be determined whether there is any authority in the charter of the city of Augusta for permitting a por-any such case as is contemplated by the act tion of one of its streets to be used for the purpose of a street fair of the character . described in the petition. The charter of Augusta contains the ordinary grants in reference to the laying out and control of streets. Blome's Code of Augusta. pp. 308, 455. Those powers do not authorize such a use of the street, and it was not seriously contended in the argument that they did. It is, however, strenuously insisted that, under the act of 1898 (Acts 1898, p. 131) amending the charter of Augusta, the municipal authorities have power to perm such a use of the streets. Taken as a whole, the act seems to be limited to a delegation of power to deal with the streets for railroad and depot purposes. But there is some very broad language in the act, and for the purposes of this case it will be treated as conferring the broader power to deal with the streets for any purpose. The act declares: "When, in the opinion of the city council of Augusta, the whole, or any part of a street, has ceased to be of general utility or use as a street. the city council, in its discretion, may permit platforms, gangways, tracks, or other structures to be constructed upon such level, and with such width, height, length, and

of 1898, even under the liberal construction contended for. The council has not exercised any authority based upon an opinion that the portion of Broad street in question has ceased to be of public utility, or will not be of public utility during the week the fair is to be held; but it has simply authorized private individuals, for their own pecuniary benefit, to use a large portion of an important business street, and thereby deprive the public, for several days, of the right to use that portion of the street for traffic or travel. There is absolutely nothing in the act of 1898, or in any other provision of the charter of Augusta, which can be properly construed as authority for the city authorities to permit such a use of one of its streets.

3. The jurisdiction of courts of equity, on the information of the proper public officer in behalf of the public, to restrain the erection or continuance of a public nuisance, is well settled. Columbus v. Jaques, 30 Ga. 506; Lofton v. Collins, 117 Ga. 434, 61 L. R. A. 150, 43 S. E. 708.

Judgment affirmed.

All the Justices concur except Candler, J., absent.


Henry E. HOWES et al., Respts.,


Abraham BARMON et al., Appts.
(...... .Idaho........)

*1. A license is a personal privilege
to do certain acts upon the lands of an
other, but creates no estate therein, is rev-
ocable at will, and may rest in parol, while
an easement is an estate in real property.
and its grant falls within the statute of

3. A court of equity will not grant the aid of specific performance where the party invoking its aid has not parted with

any consideration or property, and no irrep arable damage is suffered, and no fraud is inflicted upon him, and where he is in statu quo at the time of the commencement of his


4. Unless the evidence be clearly to the

contrary, a court will presume that a parol agreement to impress real property with a

servitude was made with a knowledge of the provisions of the statute of frauds, and was therefore intended as a license only, and not as an easement.

(May 16, 1905.)

PPEAL by defendants from a judgment

of the District Court for Shoshone

County in plaintiffs' favor in an action
brought to enjoin the closing of a stairway
and interference with plaintiffs' right of
passage therein. Reversed.

The facts are stated in the opinion.
Messrs. Walter A. Jones and Samuel
R. Stern, for appellants:

One who seeks to enforce a specific per formance of a contract is bound to establish

*Headnotes by AISHIE, J.

NOTE. AS to distinction between license and ensement generally, see also note to Nowlin v. Whipple, 6 L. R. A. 159; also the later case in this series of Nunnelly v. Southern Iron Co. 28 L. R. A. 421.

clearly and distinctly the existence of a contract and its terms.

2. Where B. is erecting a two-story building, and proposes to H. & K.. who own and occupy a two-story building on the adjoining lot, that he will build a stairway on the side of his building next to H. & K.'s building, and

Defendants revoked the license before the commencement of this action, and with the

that they may use the same for ingress and knowledge and consent of these plaintiffs.

egress to and from the second story of their building, in consideration of H. & K. allow ing B. to erect a porch on a 5-foot strip of a vacant lot adjoining the back end of B.'s building, and each party agrees thereto, and

enters upon the use so agreed upon,-Held. that the permission to use such stairway does not amount to the grant of an easement. but constitutes a license only, and is revocable by the licensor.

Barbour v. Hickey, 2 App. D. C. 207, 24 L. R. A. 763; Pifer v. Brown, 43 W. Va. 412, 49 L. R. A. 497, 27 S. E. 399; Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep, 479; Cronkhite v. Cronkhite, 94 N. Y. 323; Cros dale v. Lanigan, 129 N. Y. 604, 26 Am. St. Rep. 551, 29 N. E. 824; Hathaway v. Yakima Water, Light & P. Co. 14 Wash. 469, 53 Am. St. Rep. 874, 44 Pac. 896; Musgrove v, Hodges, 46 Kan. 764, 27 Pac. 121.

Deeds v. Stephens (Idaho) 79 Pac. 77; Rice v. Rigley, 7 Idaho, 115, 61 Pac. 290. An easement cannot be created by parol. Tiedeman, Real Prop. § 600; 10 Am. & Eng. Enc. Law, 2d ed. p. 412.

A license is an authority given to do some act, or a series of acts, on the land of another, without possessing an estate therein, and is revocable.

10 Am. & Eng. Enc. Law, 2d ed. p. 407; 18 Am. & Eng. Enc. Law, 2d ed. p. 1127; Tiedeman, Real Prop. § 653.

A married woman can only be deprived of her real estate in the mode prescribed by statute, and a certificate with acknowledg ment is as much an essential part of the execution of the deed as her signature.

[blocks in formation]

statute of frauds.

Thompson v. Gregory, 4 Johns. 81, 4 Am. Dec. 255; Richter v. Irwin, 28 Ind. 26; Hall v. McLeod, 2 Met. (Ky.) 98, 74 Am. Dec. 400; Kerr, Fraud & Mistake, § 718; Walker v. Shackelford, 49 Ark. 503, 4 Am. St. Rep. 61, 5 S. W. 887; Hodgkins v. Farrington, 150 Mass. 19, 5 L. R. A. 209, 15 Am. St. Rep. 168, 22 N. E. 73.

Nothing can be regarded as part performance to take the case out of the operation of the statute which does not place the par

As to revocability of license to maintain a

burden on land after the licensee has incurred ty in a situation which is a fraud upon him,

unless the contract be executed.

expense in creating the burden, see Pifer v. Brown. 49 L. R. A. 497, note.

Weber v. Marshall, 19 Cal. 447.

[ocr errors]

Where nothing has been done further than cree for the specific performance of a parol to pay a consideration, there is nothing in contract to grant a perpetual easement in the way of restoring the parties to their a stairway maintained in appellants' buildoriginal condition, and therefore of revoking. The principal facts upon which the ing the license. decree was entered are briefly as follows: In the month of November, 1899, the respondents, Howes & King, were the owners of lot 6 and the south one half of lot 8 in block 21 in the city of Wallace, on which stood a two-story brick building, the ground floor of which was occupied by them as a store building, and the second floor as a dwelling. About this time the appellants purchased the north half of lot 8, which adjoins the Howes & King property on the east, and began to erect a two-story brick building, 50 feet square. Prior to this time Howes & King had maintained a back stairway to their building, with the landing on the vacant lot purchased by the Barmons, and, in passing from the street to and from their stairway, they passed over this vacant lot. When the Barmons began to build, they tore away the landing, and, of course, left Howes & King without any means of ingress or egress to and from the second story of their building. At this juncture the respondent Howes and the appellant Abraham Barmon had some discussion over the construction of a stairway by the Barmons, and the future use thereof by Howes & King. Up to this time the Barmons had planned to build their stairway on the east side of their building. Howes and Barmon do not agree as to what conversation took place between them with reference to the

Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203; Wilson v. St. Paul, M. & M. R. Co. 41 Minn. 56, 4 L. R. A. 378, 42 N. W. 600; Woodward v. Seely, 11 Ill. 157, 50 Am. Dec. 445; Johnson v. Skillman, 29 Minn. 95, 43 Am. Rep. 192, 12 N. W. 149; Great Falls Waterworks Co. v. Great Northern R. Co. 21 Mont. 487, 54 Pac. 966.

Mr. W. W. Woods, for respondents: The court has always affirmed the equitable power of the court in proper cases to grant specific performance of parol contracts for the sale of lands. Part performance takes these cases out of the provisions of the statute of frauds.

Bowman v. Ayers, 2 Idaho, 465, 21 Pac. 405; Stowell v. Tucker, 7 Idaho, 312, 62 Pac. 1033; Feeney v. Chester, 7 Idaho, 324, 63 Pac. 192; Francis v. Green, 7 Idaho, 668, 65 Pac. 362; Deeds v. Stephens, 8 Idaho, 514, 69 Pac. 534; Barton v. Dunlap, 8 Idaho, 82, 66 Pac. 832; Flickinger v. Shaw, 87 Cal. 126, 11 L. R. A. 134, 22 Am. St. Rep. 234. 25 Pac. 268; Grimshaw v. Belcher, 88 cal. 217, 22 Am. St. Rep. 298, 26 Pac. 84.

Contracts made by husband and wife where possession has been delivered will be specifically enforced.

Clayton v. Frazier, 33 Tex. 91; Womack v. Womack, Tex. 397, 58 Am. Dec. 119; Dalton v. Rust, 22 Tex. 133.

Mr. Robert N. Dunn, also for respond- stairway and the future use thereof, and ents: we therefore quote from the finding of the trial court on that point. He finds "that, during the time of the construction of said building. these defendants offered to give the plaintiffs the use forever of the front stairway leading to the upper story of their said

The mere fact that the deed was taken in the name of Mrs. Darmon alone created no inference that the property was her separate property, the deed having been made on a purchase.

Meyer v. Kinzer, 12 Cal. 254; Pixley v. building, and connecting with the upper Huggins, 15 Cal. 128. story of the building so occupied by the plaintiffs and their families, for the consideration of a strip of land of 5 feet on the north part of the south one-half of lot 8, block 21, and plaintiff's agreed to said proposition." This finding of the court is followed by a finding that in the month of November, 1899, in pursuance of said contract, the plaintiffs went into the possession and use of the stairway, and the defendants at the same time went into the possession and use of the 5-foot strip off the north end of the south half of lot 8. This strip of land was contiguous to, and immediately south of, the Barmon premises, on which the building was erected. The record shows that, after the conversation took place be

Ailshie, J., delivered the opinion of the tween Howes and Barmon, the plans for court: the Barmon building were so modified as In this case the trial court entered a de- to run the stairway up on the west side of

All property acquired by either husband or wife after the marriage, except that acquired in one of the particular ways mentioned in §§ 2435 and 2496, is community property, and the burden is on the party claiming it as separate property to prove it to be such by clear and convincing evidence.

Davis v. Green, 122 Cal. 364, 55 Pac. 10; Re Boody, 113 Cal. 682, 45 Pac. 860; Yesler v. Hochstettler, 4 Wash. 349, 30 Pac. 398; Dimmick v. Dimmick, 95 Cal. 323, 30 Pac. 547; Morgan v. Lones, 78 Cal. 58, 20 Pac. 250; Pixley v. Huggins, 15 Cal. 128; Meyer v. Kinzer, 12 Cal. 254.

« AnteriorContinuar »