The intended use of the street was a nuisance.

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.

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. 130; Powell v. Foster, 59 Ga. 790.

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

|

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 Ill. App. 470; Elliott, Roads & Streets, pp. 477, 478.

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.

1. Irreparable damage, such as damage to 303, 18 So. 820; Georgia S. & F. R. Co. v. 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.

Messrs. E. H. Callaway and J. S. Reynolds, for defendant in error:

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. Smith, 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.

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 carnival upon the street.

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.

The remedy, in equity, to prevent the erection of a purpresture and public nuisance in a street or highway, is by injunetion on behalf of the people, sued out by the attorney general or other proper officer.

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.

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 account of buildings being erected upon property abutting the street. In all cases the obstructions to public travel should be removed as soon as the reason for the obstruction 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

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

error.

public nuisance. Any temporary obstruction in a public street is presumptively a

Cobb, J., delivered the opinion of the public nuisance, and it is incumbent upon

court:

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

posit of all material to be used in the building and the carrying on of all work essential to its construction.

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 un-improved there is ample room for the deder certain circumstances, even where the obstruction is for the benefit or convenience of an individual. A merchant may temporarily obstruct a passage along a street. either in receiving goods from a carrier on the street, or delivering goods to such carrier. A householder may temporarily obstruct a street in moving his effects out of or into his house. It is impossible to enumer ate 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

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 lawful purpose. Com. v. Ruggles, 6 Allen, 588; 1 Wood, Nuisances, 3d ed. § 250. The

approve, and on such terms and conditions as it may designate; or the city council of Augusta, in its discretion, may declare the same vacant and abandoned as a street, and donate the same to a use which, in their opinion, will be of advantage or utility to the commercial or business interests of the city, on such terms as the city council may prescribe." It is claimed that this confers upon the city authorities the power to vacate a street and use the land for any 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

power over streets, given to municipal of such material, as it may prescribe and corporations under the ordinary grants in municipal charters, does not authorize the municipal authorities, even by express ordinance, to permit the erection in streets of temporary obstructions for purely private gain. The enterprise described in the petition is not in any sense a public enterprise. It is merely a scheme of private individuals for pecuniary gain, and the use of the street. either in whole or in part, has not as a b'sis any purpose which the law would recognize as lawful, in the absence of express legislative 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 a public nuisance of a most aggravat-in part and for a limited time. But the exing 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 permissible, but an examination of those cases will show that the ruling in each was based upon the existence of an immemorial custom. See Elwood v. Bullock, 13 L. J. Q. B. N. S. 330; King v. Smith, 4 Esp. 109. Besides, the old English fairs were very different enterprises from the one described in the present petition.

ercise 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 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

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.

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 J., absent.

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,

IDAHO SUPREME COURT.

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

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.

Mr. Robert N. Dunn, also for respond- stairway and the future use thereof, and ents:

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