Callanan v. Gilman

The primary purpose of streets is use by the public for travel and transportation, and the general rule is. that any obstrnction of a street or encroachment thereon which interferes with such use is a public nuisance. But there are exceptions to the general rule born of necessity and justified by public convenience. Xn abutting owner engaged in building may temporarily encroach upon the street by the. deposit of building materials. A tradesman may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in {he street to take up or set down passengers, and the use of a street for public travel may be temporarily interfered with in a variety of other ways without the creation of what in the law is deemed to be a nuisance. But all such interruptions and obstructions of streets must be-justified by necessity. It is not sufficient, however, that the obstructions are necessary with reference to the business of' him who erects and maintains them. They must also be-reasonable with reference to the rights of the public who have interests in the streets which may not be sacrificed or disregarded. Whether an obstruction in the street is necessary and reasonable must generally be a question of fact to be-determined upon the evidence relating thereto. A reference to a few cases will show what courts have said upon this subject.

In Rex v. Russell (6 East 420) where the defendant, a wagoner, was indicted for occupying one side of a public street before his warehouse for loading and unloading his wagons, the court said “that it should be fully understood that the defendant could not legally carry on any part of his-business in the public street to the annoyance of the public; that the primary object of the street was for the free passage of the public, and anything which impeded that free passage without necessity was a nuisance; that if the nature-

A stage coach may set down or take up passengers in the street, this being necessary for public convenience; but it must be done in a reasonable time, and private premises must be provided for the coach to stand while waiting between one journey .and the commencement of another.” In Rex v. Jones (3 Camp. 230), the defendant, a lumber merchant in London, was indicted for the obstruction of a part of a street in the hewing and sawing of logs, and the court said : “ If an unreasonable time is occupied in delivering beer from a brewer’s dray into the cellar of a publican, this is certainly a nuisance. A cart •or wagon may be unloaded at a gateway, but .this must be -done with promptness. So as to the repairing of a house, the public must submit to the inconvenience occasioned necessarily in repairing the house; but if this inconvenience should be -prolonged for an unreasonable time, the public have a right to •complain, and the party may be indicted for a nuisance. The rule of law upon this subject is much neglected, and great advantages would arise from a strict, steady application of it. I cannot bring myself to doubt the guilt of this defendant. He is not to eke out the inconvenience of his own premises by taking in the public highway with his lumber yard, and if the street be too narrow he must move to a more convenient place for carrying on his business.” In Commonwealth v. Passmore (1S. & R. 217), the defendant, an auctioneer, was indicted for a nuisance in placing goods on the foot-way and carriage-way of one of the public streets of the city and suffering them to remain for the purpose of being sold there, so as to render the

Now what are the facts of this case? Both the plaintiffs and the defendant were extensive retail and wholesale grocers having stores near to each other on the south side of Yesey street in the city of New York; and a large portion of the plaintiffs’ customers, in order to reach their store, were obliged to pass upon the sidewalk in front of the defendant’s store. Goods were taken to and from the defendant’s store by means of trucks loaded in the street. The trucks were placed in the street adjoining the sidewalk and then a bridge made of two skids planked over so as to make a plank way three feet "wide and fifteen feet long, with side pieces three and one-half inches high, was placed over the sidewalk with one end resting upon the stoop of the defendant’s store and the other end upon a wooden horse outside of the sidewalk near the truck to be loaded. This bridge was elevated above the sidewalk at the inner end about twelve inches and at the outer end about twenty inches, thus entirely obstructing the sidewalk, and

The plaintiffs did not demand any damages in their complaint, and none were awarded to them by the judgment. They simply demanded an injunction restraining the nuisance, and such was the judgment given to them. The complaint sufficiently alleges the special damages. It sets forth the location of the stores of the parties on the same side of the street, near to each other, the character of the bridge, which, when in use by the defendant, was only thirty-five feet from plaintiffs’ store, and the manner and extent of the obstruction upon the sidewalk. From these facts alone, as they are fully set forth, it clearly appears that the plaintiffs suffered dairtage from the nuisance, which was not common to other persons having occasion to use the street. But the complaint goes still further, and distinctly alleges that the obstruction prevents “the plaintiffs and their employes or patrons and all persons from passing along said sidewalk to and from Church street, and to and from plaintiffs’ said store, to the detriment and great injury of plaintiffs and their said business; ” that the obstruction had been maintained for more than six months prior to the commencement of the action, on an average of five hours each day during the business hours of the day, “ to the great and irreparable injury of the plaintiffs.” While the complaint is not very definite as to the particular damags suffered by the plaintiffs and the extent thereof, there is enough to show that they suffered some special. damage; and if the defendant was not satisfied with the complaint in these respects, he should have moved to make it more definite, or for a bill of particulars. The defendant

The facts proved and found show special damage from the nuisance to the plaintiffs. There was some proof that some custom was turned from the plaintiffs’ store on account of the obstruction, and that pedestrians were turned to the north side of the street before reaching plaintiffs’ store. That the plaintiffs suffered some special damage not common to persons merely using the street for passage is too obvious for reasonable dispute. Direct proof of the damage was not needed. All the circumstances show it.

It is further objected, on the part of the defendant, that ■some of the material findings of fact made by the trial judge were not upheld by any evidence. A careful scrutiny of the ■evidence fails to satisfy us that this objection is well founded. On the contrary, the undisputed evidence showed the nuisance, the special damage and the right of the plaintiffs to a judgment restraining such nuisance. The evidence of the defendant was directed mainly to show that the bridge was necessary in his business; that skids and other similar appliances were in ■common use by merchants in the city, and that he left a passage-way for pedestrians on and over his stoop. The alleged necessity, as we have shown, furnished the defendant no justification for the nuisance, and it may be conceded that similar appliances are quite common in New York. It is not the nature of this appliance that furnishes the basis of our judgment, but its unreasonable use. The defendant could not justify his unreasonable obstruction of the sidewalk by showing that he allowed pedestrians to pass around or through his store or over his elevated stoop between moving barrels and packages. The stoop is no part of the sidewalk, and the defendant could not appropriate that to his private use and substitute his stoop for the public convenience. While temporarily obstructing the sidewalk, he should give pedestrians the best passage he can over his stoop. But this should be a temporary, not a permanent shift. He cannot justify the

The trial judge refused to make any findings upon certain questions of fact submitted to him, and this is now complained of as error. It is the duty of the trial judge to find upon every material question of fact submitted to him and involved in the evidence. But his refusal to do so will not be an error fatal to his judgment if the findings asked were not material to the decision of the case, or would not be beneficial to the party asking them. Among the findings thus submitted on the part of the defendant were the following: “ That the defendant uses the place complained of at a time and in a manner that is reasonable under all the circumstances; ” “ that the use of the sidewalk by the defendant does' not unreasonably abridge or obstruct the passage of pedestrians.” The judge should properly have found upon these questions; but upon the undisputed evidence he should have found against the defendant, and, therefore, he has suffered no harm from the neglect or refusal to find. The facts proved by uncontradicted evidence, and found, showed that the obstruction was unreasonable. If the trial judge had responded to these findings in favor of the defendant, and had yet rendered judgment against him, the judgment would still have been based upon sufficient facts and could not have been disturbed. The opinion and conclusion of the trial judge, notwithstanding the other facts found, that the obstruction caused by the defendant was not unreasonable, would not have been controlling and would not have sustained a judgment in favor of the defendant. Such a judgment would have been against the evidence.

But the judgment rendered is too broad and general in its terms. It is as follows: “ That plaintiffs are entitled to an injunction perpetually restraining the defendant, his agents, servants or employes, from obstructing the southerly sidewalk of Vesey street, in front of the premises Hos. 35 and 37 Vesey street, by any plank-way or bridge or other like obstruction, elevated above the sidewalk, and reaching from said store, or

It is difficult to frame the judgment by the use of general language so as to protect and secure the rights of the parties. But the rules we have laid down in this opinion will probably be found sufficient as a guide if it should be necessary to enforce the judgment as modified, and therefrom the meaning ■and scope of the important words “ unnecessarily ” and “ unreasonably ” may, with sufficient accuracy, be ascertained.

All concur.

Judgment accordingly.