Murden v. Commissioners of Lewes , 7 Boyce 428 ( 1919 )

Curtis, Ch.,

delivering the opinion of the court:

The case is here on a writ of error to the Superior Court for Sussex county. Charles M. Murden brought his action there to recover damages for injury to his houseboat and contents which had been pushed from the beach at Lewes into the water, admittedly by order of the Commissioners of Lewes, the defendant, claiming that it was an illegal obstruction on Bay avenue. Permission had been given to the plaintiff to pull the houseboat out of the water for repairs, and the owner had ignored more than one notice to remove it.

In the charge to the jury it was properly and clearly instructed to determine whether the houseboat was such an obstruction to a public highway as to be a public nusiance, and if they so found, then to determine whether in exercising its lawful right to abate the' nuisance the defendant exercised reasonable care to avoid unnecessary injury to the property removed. A verdict was rendered for the defendant.

Of the seven assignments of error the first relates to the refusal to admit in evidence the lease executed by the Commissioners of Lewes to the Queen Anne Railroad Company of a right of way over the beach front at Lewes, and the other assignments relate to the charge of the court.

[2] The lease was offered in evidence by the plaintiff below in rebuttal. Evidence had been introduced by the defendant, tending to prove that the place where the house boat of the plaintiff was located was part of Bay avenue, or South street extended, and the public user of the beach front to the shore. It was urged by plaintiff that the lease of certain lots on the beach front in this locality to the railroad company, with the right to erect piers thereon, showed, or tended to show, that the whole beach front was not within either of those highways because the lease gave the right to obstruct the public user thereof by piers. The court included the testimony because the lease did not prove, or tend to prove, the issue as to whether the houseboat was, or was not, within a public thoroughfare. This was clearly -a correct ruling. The right to erect a pier did not necessarily carry with it a right to obstruct the public user of the highway, for the piers might be so constructed as not to obstruct such user. The argument made for the plaintiff is that the boathouse was not in a public highway, because the town authorities rightly or wrongly had by lease given the railroad a right to obstruct the locality claimed to be the highway. To use the words of the brief of the plaintiff’s counsel, the piers “would have made the extension of Bay avenue impossible as a thoroughfare.” But the lease was so clearly irrelevant upon this point and to the issues in the case, that it was rightly excluded from the consideration of the jury. It is the duty of a trial court to exclude immaterial evidence, for it tends to obscure the real issues and confuse the minds of the jurors. The first assignment of error is untenable. '

All the other assignments of error relate to the charge of the court to the jury, and the omission to charge as prayed for by the plaintiff.

The trial court rightly refused to give binding instructions to find for the plaintiff, to instruct the jury as prayed for by the plaintiff, and rightly submitted to the jury as a question of fact of the location and extent of Bay avenue as a street; these matters being the subject of the second, third and fourth assignments of error.

The fifth assignment of error is that the court below erred in that it did not deny the right of the town commissioners to remove the houseboat summarily, or otherwise than in accordance with a certain ordinance of the town of Lewes. A disposition of this assignment will dispose of the remaining assignments.

[3, 4] Clearly the town commissioners had power and authority to prevent and remove obstructions and encroachments in and upon any highway of the town of Lewes. Such authority was expressly given by statute. It is also expressly given power to abate or remove a nuisance of any kind. These powers so given are broad enough to authorize a summary abatement of whatever obstruction to a highway amounts to a nuisance. The adoption by the town of an ordinance providing a procedure for enforcing orders for the removal of obstructions does not limit the exercise of the general power in a summary way and without adopting the procedure, for the grant is general and the town is not by the charter limited to an exercise of the power in a manner to be provided by ordinance. In Hart v. Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165, the court recognized the right to abate a nuisance per se summarily, though there was an ordinance providing a remedy. To the same effect is City of Red Wing v. Guptil, 72 Minn. 259, 75 N. W. 234, 41 L. R. A. 321, 71 Am. St. Rep. 485.

It is to be assumed that the houseboat was an obstruction to the free use of a highway by the public, and a public nuisance. It has been so found by the jury for, having been instructed in substance that any unlawful tangible obstruction which interferes with the use of the whole of a highway by the public is a public nuisance, they found for the defendant.

Of course a municipality has no right to so remove from a highway as a nuisance something which is not a nuisance. The cases cited by the plaintiff in opposition to the right to abate nuisances were cases in which it was not shown that the objection-thing was a nuisance. Coast Co. v. Spring Lake, 56 N. J. Eq. 625, 36 Atl. 21; Dawes v. Hightstown, 45 N. J. Law, 127; Yates v. Milwaukee, 10 Wall. 505, 19 L. Ed. 984; Davis v. Davis, 40 W. Va. 464, 21 S. E. 906.

[5] Independent of the charter powers the Commissioners of Lewes had a right summarily, and without a hearing, to remove the houseboat as a public nuisance, as an obstruction to a public highway of the town. Such right is inherent, and no pertinent authority to the contrary has been shown or found.

A municipal corporation may summarily remove from a public highway any tangible object placed there which so obstructs the public use of the highway as to be a public nuisance. 3 McQuillan on Municipal Corporations, §§ 904, 926, 1370; Joyce on Nuisance, § 345; 1 Abbott on Municipal Corporations, p. 277; Hart v. Albany, 9 Wend. (N. Y.) 571, 24 Am. Dec. 165; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830.

In Baumgartner v. Hasty the court said:

“But it is settled without dissent that without a special grant of authority public corporations may, as a common-law power, cause the abatement of nuisances, and if the nuisance cannot otherwise be abated, may destroy the the thing which constitutes it. The authorities do, indeed, go much further, for they declare that it is the duty of the corporation to abate public nuisances. It is one of the oldest of the common law rules, that an individual citizen may, without notice abate a nuisance, and, if it is necessary to effectually abate it, destroy the thing which creates it [citing numerous authorities]. These authorities, running back as they do into the early years of the common law, and extending in an unbroken line to the present time, prove that not only may a governmental corporation abate a nuisance by the destruction of the thing constituting it, but so, also, may a private individual. It is, therefore, not the delegation of a new or extraordinary power to authorize a municipal corporation to abate nuisances by removing or destroying the thing which creates it. * * * ”

[6] In summarily abating a nuisance one acts at his peril. The court in People v. Yonkers, 140 N. Y. 1, 10, 35 N. E. 320, 323 (23 L. R. A. 481, 37 Am. St. Rep. 522), said:

“Whoever abates an alleged nuisance and thus destroys or injures private property, or interferes with private rights, whether he be a public officer or private person, unless he acts under the judgment or order of a court having jurisdiction, does it at his peril, and when his act is challenged in the regular judicial tribunal, it must appear that the thing abated was in fact a nuisance. This rule has the sanction of public policy, and is founded upon fundamental constitutional principles.”

[7] One who abates a nuisance must not unnecessarily injure the obstruction. As a necessary inference from the verdict of the jury for the defendant, the town authorities removed the houseboat without doing more injury to it, or the contents thereof, than was necessary.

There being no error in the record, and none of the assignments of error being tenable, the judgment of the court below will be affirmed here, with costs in both courts on the plaintiff in error.