Obstructions in a street, necessitated by the erection of a building, and not unreasonably prolonged, are not a nuisance.

ANDAMUS. The opinion states the case.

MANI

Redick and Redick, for relator.

John D. Howe, for respondents.

MAXWELL, J. This is an application for a mandamus to compel the mayor and council, the marshal, and street commissioner of the city of Omaha, to remove a certain frame building from Twelfth street in said city. The relator states in his application that he is a saloon keeper in said city; "that on or about the 1st of February, 1880, he procured a lease of the building then and now standing on the west side of Twelfth street, between said Farnham and Douglas streets, and on the corner of the alley, for years from that date; that he took out his license as required by law, and at a great expense fitted up said building, placed therein a large stock of goods, and engaged in the retail liquor and cigar business, and soon built up a large and lucrative trade, which was constantly increasing until the date of the grievances hereinafter stated. * That on or about the 1st day of March, 1882, the Nebraska National Bank, a corporation organized under the National banking act of the Congress of the United States, purchased a large building, one hundred and thirty-two feet in length and twenty-two feet in width, then standing on the north-west corner of Farnham and Twelfth streets, and on lot eight, in block one hundred and twenty-one, and unlawfully moved the same out over the sidewalk into said Twelfth street, so that the same occupied about twenty-four feet of said street for a distance of about one hundred and thirty-six feet, the rear of said building standing within twenty feet of the front doors of your petitioner's place of business, and in so doing tore up and mutilated the sidewalk running from Farnham street to the alley on the west side of said Twelfth street; that the only way wagon or carriage travel on said Twelfth street between Farnham and Douglas streets can be accommodated is by a narrow passage way between said building and the sidewalk on the east side of said

State v. City of Omaha.

Twelfth street; that said building obstructs and hinders traffic of every kind upon said street, and is a great inconvenience to the travelling public in general, and those who do business on that street in particular, and by reason whereof your petitioner is greatly and especially damaged; that by reason of said obstruction your petitioner's place is out of sight of said Farnham street and persons who pass that way, and has been rendered almost inaccessible; that in plaintiff's business the most important element of success is the procurement of a well known and popular locality; that there is no place in said city as desirable and advantageous to your petitioner for his said business as was his present one before the removal of said building into said street; that since said removal his trade has been constantly falling off, owing to the impassable condition of said street and the obscurity of his location, and the fact that pedestrians are driven to the east side of said Twelfth street, all caused by the removal of said building into and the consequent obstruction of said street," etc.

[Omitting other points.]

Is a reasonable temporary obstruction of the street and sidewalk for the purpose of erecting a new building a nuisance? The right of the public to the use of a street is the right of every person who desires to do so to pass and repass along the same. But this right is subject to temporary or partial obstructions necessarily placed therein.

66

In Com. v. Passmore, 1 S. & R. 217, the Supreme Court of Pennsylvania says: Necessity justifies actions which would otherwise be nuisances; this necessity need not be absolute - it is enough to be reasonable. No man has a right to throw wood or stones into the street at pleasure. But inasmuch as fuel is necessary a man may throw wood into the street for the purpose of having it carried into the house, and it may lie there a reasonable time. So because building is necessary, stone, brick, lime, sand, and other materials may be placed in the street, provided it be done in the most convenient manner.

In Rex v. Ward, 4 Ad. & El. 405, Lord DENMAN, speaking in reference to a board erected for repairing a house, said: "The board is placed for the safety of those possessing the right of way; it protects them from inevitable danger; if it leaves them a free passage, and leads them another way, the whole street is necessarily obstructed. Every way to which houses adjoin must be considered

State v. City of Omaha

as set out, subject to those occasional interruptions which resemble the temporary acts of loading coal in Keels, alluded to in Rex v. Russell, 6 B. & C. 566.”

In Clark v. Fry, 8 Ohio St. 373-4, the Supreme Court of Ohio says: "Even the use of a highway for mere transit by one part of the public may, at the time of a multitude upon it, oppose a temporary obstruction to the passage of another part of the public. A company of persons stopping and standing on the pavement of a street with their wagons or carriages, for mere temporary purposes of business, interpose impediments to the free and uninterrupted transit upon a public highway. The delivery of freight, and every variety of goods, fuel, etc., at business and other houses, on a street is a necessity incident to the use of the public highway, and the repair and improvement of the streets and the deposit of the materials for the same, often create obstructions to the uninterrupted transit by the public. So also the improvement or building or repair of houses, and the construction of sewers and cellar drains, on adjacent lots, often create necessary temporary impediments upon public highways. These are not invasions of, but simply incidents to, or rather qualifications of, the right of transit, and the limitation upon them is, that they must not be unnecessarily and unreasonably interposed or prolonged."

Temporary obstructions in a street which are reasonable and necessary, for the erection of a building upon an adjacent lot, do not constitute a nuisance, provided they are not unreasonably prolonged. Such obstructions are not invasions of the rights of the public to the use of the street, but merely incideut to or a limitation on such right; but are justified only so long as they are reasonably necessary. The party placing the obstructions therein however will not be justified in leaving the street in an unsafe condition. One of the principal grounds of complaint in this case is the obstruction of the sidewalk, thereby causing people to pass on the east side of the street, and away from the relator's place of business, but there are no facts stated showing such obstruction to be unnecessary. As to the removal of the building into the street, it is evident that it was placed there temporarily, and there is no allegation that it was not so removed with the consent of the proper public authorities. The facts stated in the application do not show the obstructions to be a nuisance. The writ must be denied.

Writ denied.

A water grist-mill, for public use, and under public regulation, is a work of "internal improvement," within a statute authorizing the issue of public bonds. (See note, p. 116.)

A

CTION for injunction. The opinion states the case. The defendant had judgment below.

John Patterson, for plaintiff in error.

A. J. Poppleton and W. H. Webster, for defendants in error.

MAXWELL, J. This is an action to enjoin the defendant from levying taxes to pay certain bonds issued to J. G. Brewer to aid in the erection of a water grist-mill in Merrick county. The defendants demurred to the petition, and the demurrer was sustained, and the action dismissed.

It is alleged in the petition in substance that on or about the 1st day of February, 1872, the county commissioners of Merrick county submitted to the electors thereof the question of voting bonds to said Brewer in the amount of $6,000, to draw interest at 10 per cent, to aid in the erection and maintenance of a flouring and gristmill at or near Lone Tree, now Central City, in said county; that said proposition was adopted and the bonds issued and sold and the mill erected as provided; that said commissioners are about to levy $5,000 to pay the amount due on the principal of said bonds, and the further sum of $600 as interest thereon.

It is also alleged that the bonds on their face show that they were issued for an illegal purpose. The bonds are in the fol

lowing form:

MILL BOND.

UNITED STATES OF AMERICA.

MERRICK CO. MILL BOND, STATE OF NEBRASKA.

Ten years after date, for value received, the county of Merrick,

Traver v. Merrick County.

in the State of Nebraska, promises to pay.

or bearer,

ONE HUNDRED DOLLARS,

lawful money of the United States, at the office of the county treasurer of said county, with interest at the rate of ten per cent per annum from date until paid; said interest payable at the "National Park Bank" in the city of New York semi-annually, on the first day of August and first day of February in each year, on the presentation of the coupons hereto annexed. This bond is one of a series of sixty of like tenor, date, and amount, issued as a loan to the said James G. Brewer to aid him in building a public gristmill and water power in said county of Merrick, on section thirtyone (31), township thirteen (13) north, range six (6) west, authorized by the laws of the State of Nebraska, and issued pursuant to a vote of the legal voters of said county, at a special election regularly held on the 9th day of January, A. D. 1872, authorizing their issue, and providing for the payment of the principal and interest at maturity.

In testimony whereof, we, the county commissioners of said county, have hereunto subscribed our names, and have caused this to be attested by the county clerk of said county, with the seal thereof hereto affixed, and the annexed coupons signed by said county clerk.

Dated at Lone Tree, Nebraska, February 1, 1872.

The question for determination is, is a water grist-mill a work of internal improvement within the meaning of the statute?

The act of February 15, 1869, provides as follows:

"SEC. 1. That any county or city in the State of Nebraska is hereby authorized to issue bonds to aid in the construction of any railroad, or other work of internal improvement, to an amount to be determined by the county commissioners of such county or the city council of such city, not exceeding ten per centum of the assessed valuation of all taxable property in said county or city; provided, The county commissioners or city council shall first submit the question of issuing such bonds to a vote of the legal voters of said county or city, in the manner provided by chapter nine of the Revised Statutes of the State of Nebraska, for submitting to the people of a county the question of borrowing money."

Section 2 provides that: "The proposition of the question must be accompanied by a provision to levy a tax annually for the pay