The record-union., 1894-06-05
down MUST GO POST AWNINGS.
Justice Devine Lays the Legal Ak
Against Them.
The Streets From Side to Side. Also
Sidewalks, Belong to the Public,
and Awnings ObsJruct.


Ian and Adam An1kele were some time ago
prosecuted for maintaining post awnings.
They contested the case, and yesterday
Police Judge Devine passed upon the Is
sues involved. He argues the case clearly
and ably in an elaborate opinion, every
point and authority in which the REC
ORD UNION preserves in the following
full synopsis;
The defendants, owners of lots and
buildings in the city, have awnings at
tached to the latter and supported by
posts resting on the outer edge OF the
Sidewalks, in disobedience to Ordinance
323. These wooden awnings were erected
prior to the enactment OF this ordinance,
or any other forbidding them, and the
awnings are now as safe and sound as at
the first.
Ordinance II, under the old charter.
recognized these post-supported awnings
and prescribed regulations for their night
and Width.
The old charter Q863) gave the City
Trustees power TO enact ordinances To
prevent or regulate the construction OF
sheds or awnings, and to provide 1or
sidewalks, their regulation and removal
of distractions therefrom; 10 determine
what are nuisances, and abate them.
Uuder this power Ordinance 323 was
passed October g. 1898, making 1t unlaw-
Iul within certain limits TO MAINTAIN post
awnings held in place IN part by sup
ports resting on or attached to the side
walks, and declaring such to be unsafe
and dangerous, and condemlng the same
and ordering their removal, and making
1t unlawful for any one 10 allow such
supports to remain longer than thirty
DAYS after the date of the ordinance.
The awnings of defendants fall within
the provisions of that ordinance. De-
PENDANTS claim that their awnings being
safe, are not street distractions or nul-
sances, and cannot be so declared by
ordinances; that they are not distractions
in the sense of the authority OF the city to
protect from fire, or its exercise OF police
power; that the awnings were erected by
permission of the city under the law;
that the ordinance under which defend
ants are prosecuted Is unreasonable and
void, and Is unconstitutional, because
depriving defendants OF valuable rights
and property without due process of law.
The court holds that the streets from side
to side and end TO end belong TO the pub
lie. Any material encroachlng on such
highways, as impedes travel, or inter-
feres with the right OF the public to en-
Joy its rights on the streets, Is nuisance
and may be abated.
1t makes no difference that there is
SPACE enough left outside the encroaching
structure Tor passage by the public, for
ii encf cfoachment at all is permitted, or ac-
quired in or permitted by reason of in
difference OF those In authority, or Is by
lapse OF time allowed 10 ripen into q
right, then in short time property in
tended for use OF the public alone would
be subordinated in its entirety to private
use, to serious interference with the
rights OF the public.
No one can acquire by adverse occupa-
tion, as against the public, the right to
IL I'D l. IL,
$50 Cal 265; 90 Cal. 451; 81 Cal. 95.)
The streets include the sidewalks as
we'll as the highway l65 Cal. 800 and OBJ
struetion of a sidewalk is a public nuis-
ance. (67 Cal. 1907
Public highways from side TO side and end
to end belong TO the public The rights of the
pubic. nguratively speaking, in public
street or highway extend beneath the surface
TO the center OF The earth, ana above It's sur
face to the highest heavens, TO such an extent,
at least. that no person may unlawtuliy OBJ
struct such public rights. The permanent use
and occupation OF any street OF highway by
any person, by the erection or maintenance
OF any structure on or beneath, or above its
surface. which wrongfully obstructs, or
may obstruct such highway, is a misde-
meanor within the meaning OF the statute,
and is public nuisance. (McCOrmick Har-
vesting Manufacturing Company VS.. Glidden,
20 Indiana, 44T.)
A wooden awning or roofing extending
over the sidewalk, supported on the outer
side by posts resting on ground near the
curbstone, converts a part OF the street
inte covered way, and is a nuisance.
IA New York, 264)
While Section g. of Ordinance II told
charter), authorized defendants awnings,
it is superseded by the new ordinance
and makes what may be called legal
lied nuisance an otfenSe. The authorize
ton or right given was a revocable Ii
cense or permission, and can be with
n ROY wi ha oif
sary or proper, no matter how long the
structure has been built or what it cost.
Elk parte Taylor, 81 Cal. 81, is instruct
i've on this point Taylor violated street
and sidewalk ordinance of San Jose by
two-foot obstruction to the walkway for
the length OF forty feet on the inner side.
The court says an ordinance of 1881 au-
thorized the obstruction, but an amend
ment in 1890 forbade it. 1t then ceased to
be a legalized obstruction such as was
passed on in 67 Cal. $50, and became vio-
lation of the statutes and the ordinance,
for which the offender is amenable
A bay window projecting three and a
half feet from second story over the
sidewalk, it was held in Pennsylvania
900 Pa. ST. Rep. 1872, could not be justi-
lied by an ordinance, and its construction
was enjoined.
The Trustees under the old charter had
power to enact the ordinance in question;
Ln0y ndu lne authority unQer the general
police power OF the city. and had inher-
emily the right to declare these awnings
distractions to the streets and to order
their abatement. It is a right and duty
of municipal government. 12 Gray
Mass. Reps. 1857
But, say defendants then if the Trus-
tees may condemn awnings erected prior
to the passage of the ordinance, they may
from time to time pass new ordinances
requiring alterations or complete aban-
donment Of awnings now erected and
conforming TO the existing ordinance
Be this as it may, the power must be
lodged somewhere, subject to legal re-
strictions. In ex parte Smith, IS Cal.
707, Justice Sanderson said, primarily
the power to judge of the necessity or
reasonableness of prohibitory laws lies
with the people when they adopt their
Constitution or establish their form OF
government. When they establish such
rules as they deem proper, the residue of
the power must be lodged in the law
making department of the government.