Birmingham state herald., 1895-12-22
IMPORTANT DECISION
Rendered by the Supreme Court-Fruit Stands Must Be Removed From the
 Sidewalks,

The supreme court on Wednesday af- | flrmed the decision of the Jefferson coun- | ty criminal court in the case of James Costello ct al. vs the state of Alabama. By this decision the owners of fruit stands will be forced off the sidewalks. The decision, rendered by Justice Head, is as follows: The State of Alabama, Judicial Depart
 ment-The Supreme Court of Alabama,
 November Term, 1895-Sixth Division,
 7O5, 7o6, TOT.
 James Costello, James Stathakis and
 Peter PapaleXandrakis VS. the State
 of Alabama
 Appeals from Jefferson Criminal Court
 Head, J.-These are three several cases, being criminal prosecutions, one against each of the appellants for erecting or maintaining a public nuisance in the city of Birmingham. The charge against each as set forth in the complaint is, that in a part of a designated public highway, within the corporate limits of said city, in the county of Jefferson, state of Alabama, he did. knowingly, inten- tionally and unlawfully, erect, keep or maintain, for the purpose of doing busi- ness, a certain fruit stand, by reason whereof said highway, or portion there of, was obstructed and made less con venient, to the great damage and com mon nuisance. not only of all the inhab- itantS of said city, but to all other good citizens of said state there passing and repassing and laboring. The undisputed evidence showed that Costello for year next before the commencement of the prosecution kept and maintained fruit stand, constructed of timber and lumber, so arranged as to display fruits, etc, for the purpose of doing business. It was situated on the inside portion of the side walk on Twentieth street, in said city, between First and Morris avenues, and next to and along by the side of four story-brick store house. It was 31 feet long, feet, inches wide, being feet high at the lower or outer edge, and rising as 1t receded in width towards the store house to height of feet next to and adjoining the store house, the width at the top and next to the store house being 1 foot Prior to the erection of this stand there was in the sidewalk, next to the building, an open way lead ing to a room or cellar under the build- ing, and in October, 1894, Costello covered this opening and erected the fruit stand thereon, the stand occupying only the surface space occupied by the cover to the opening. The opening was made by the owners of the store house in the year 1S87 and remained there until covered by Costello the city authorities never having objected to it. The cellar or room to which 1t afforded entrance has not been used since the opening was covered. Costello kept the stand under a lease from the owners of the building. By city ordinance a license tax of $20 per an mum was imposed upon the business Of keeping a fruit stand on a sidewalk of the city. which license has been taken out and tax paid by appellants for the time covered by the complaints. Birming- ham, during the time in question, was city of 26, 800 population, and Twentieth street was, and had been for many years, a public street or highway therein, and the place where the stand in question was kept lis in the most populous DOT tion of a part of the business portion Of said city, and said Twentieth street and said sidewalk are as much travelled as any other street in said city. and said sidewalk is a part of said highway. The sidewalks were 15 feet wide. So far as the legal question presented by the records are concerned. there is no ma terial difference in the facts of several cases Thre are slight differences in the dimensions of the stands. Two are for fruits and one for candies and confections. They are located at different places in the city, but all on important and commonly used public sidewalks of the city and they take up, practically, the same side walk space, and In the same manner. There was no cellar opening in the two other cases.
 Here, then. we have in either case the undisputed fact that at least 31A of the 15 feet width of sidewalk (nearly one fourth), and nearly 30 feet of it's length, were exclusively and permanently ap- propriated by the defendant to his pTt- vate uses, to the entire deprivation of the public of the space so appropriated. And to this must be added, as a necessa- ry legal inference, from the fact that these stands were used for carrying on the business of selling fruits, etc, the permanent occupation of the sidewalk by the person or persons engaged in making the sales, and by the standing thereon, from time to time day by day, of customers trading at such stands. The trial court was of opinion that these facts, of themselves. constituted. as mat ter of law, public nuisances indictable as such. without requiring the proseeut- or Gas then and now contended for by ap- pellants counseD to go further and prove that such ereetions actually incommode the general public. It seems to us that the statement of the case necessarily precludes any other conclusion. It Is not and cannot be denied that the pub lie has a right 10 the use of the entire sidewalk for the purpose of passage and other public purposes; that the appel 1antS have without lawful authority per manently appropriated to their own ex- elusive use and enjoyment material DOT tions of the sidewalk In question. there by wholly depriving the public of the use of such portions. An unlawful depriva- ton of a substantial legal right necessa- rIly implies injury to the party so de- prived; and it is so with reference to the right of the public to the free use Of the streets. When 1t is established that party has. permanently and unlawfully, obstructed material portion of pub lie street which the public have a right to use, and but for the obstruction would use for public purposes. it is thereby concluded that the public have been in- jured and put to inconvenience by req son of the obstruction; and this consti- tutes in law an indictable nuisance MT. Freeman tersely states the law, as ex- tracted from the numerous authorities he cites, in his extended annotation of Callahan vs. Gilman. l Am. St. Rep $40, as follows: "The public have a right to passage over street to it's utmost extent unobstructed by any impedi- ments. And any unauthorized obstruc- ton, which necessarily impedes the law ful use of a highway. is nuisance at full use of a highway. is public nuisance at common law" And Judge Ruffin, a Edens, S5 N. C., 526: Any permanent obstruction to public highway. such as would be caused by the erection of a fence or building thereon, is of itself a nuisance. though it should not operate as