The record-union., 1896-06-27
CANNOT OBSTRUCT WALKS.
ClOthier Marks Gains a Point In His
Injunction Suit.
Judge Johnson Says His Complaint
Against Weinstock, Lubin &
Co. is Sound.

In Department Two of the Superior
Court yesterday Judge johnson over
ruled the demurrer of the defendants
to the complaint of II. Marks against
Weinstock, Lubin & Co. in the case
concerning the use of portion or the
sidewalk where their properties join on
K street, and the case will be called for
trial next month on its merits. In his
decision overruling the demurrer Judge
johnson says:
The plaintiff and defendant Ca corpo-
ration) are engaged in mercantile busi-
ness contiguous to each other on the
south side of X street, and between
Fourth and Fifth, in the city of Sacra-
mento The defendants premises
front on X street for a distance of 12O
feet, commencing at the corner of
Fourth, while plaintiffs premises,
fronting forty feet on K, lie immediate
ly east of defendant Defendant is in
the habit of placing a movable show
case during business hours upon the
sidewalk on the dividing line, if ex-
tended between the premises of said
parties. This showcase is three feet
IN length and stands out on the side
walk that distance, and is seven feet
side that faces toward Fourth street,
in which are exhibited various articles
of merchandise which it has for sale in
Its store, while the west side of the
case, or the back, is closed and blind,
and SO far as it's physical effect is
concerned, has the appearance on the
east side of a wall extending on to the
sidewalk for a distance of three feet
- 1t
The plaintiff complains of this OBJ
struction upon the sidewalk as a spe-
cial nuisance to him for the reason that
persons coming from the direction of
Fourth street upon the sidewalk are un-
able to see his signs and advertisements
nor the entrance to his place of busi-
ness until they get past this obstruc-
ton For which reason he claims that
he is specially damaged, and wishes
to have an injunction perpetually re-
moving the obstruction
The defendant in reply, says that it
is permitted by Ordinance 346 of the
city of Sacramento to maintain the
showcase in the place where it does.
The ordinance referred to permits mer-
chants Of the city to utilize the side
walk for space of three feet in front
of their places of business for the pur-
pose of exhibiting their wares, etc. and
they claim that the showcase in ques-
ton was used for the purpose of ex-
hloltlng goods, and was within the
provisions of the ordinance
1t may be safely assumed that anv
obstruction Of a public street or thor
oughfare is a nuisance to the public.
All such should be free and untram-
meled in their use and enjoyment. and
can only be interfered with by reason OF
urgent necessity, such as the placing of
building materials in the street for the
construction of a building adjacent
thereto, the landing of goods upon the
Sidewalk before taking them into the
ADJOINING stores, etc, but it must be
borne in mind that all such obstruc
tlons are temporary in their nature
and would in no instance be allowed to
remain an unreasonable time.
Ihe city, by proper ordinances, rea-
sonable in their nature, may permit the
occupants of stores to use the adjacent
sidewalks for the exhibition of their
goods, but they have no right by ordi-
nance to permit any use of a public
street that will work special damage
upon a private individual The rights
of private individual in such a case
are just as sacred as the rights of pri-
Vate property, and neither the one nor
the other can be taken from him without
just compensation Baltimore and Po-
tomac r r Co. VS.. Fifth Baptist Church.
Jos n. s. 311; Nevis VS. City of Peoria.
Al III. 502, 50 Am. D. 800: Callahan VS..
Gilman, 101 n. Y. 800 / Am. State r.
S31; Lind VS.. City of San Luis Obispo.
100 Cal. $40; City of Pueblo VS.. Strait.
20 Col / Am, St r. 213)
The case found in the 107 New York
of Callahan VS.. Gilman, is very much
like the one under consideration, so far
as the principle involved is concerned.
The facts in that case are as follows:
Both the plaintiffs and the defendant
were extensive retail and wholesale gro
GERS, having stores near to each other
on the south side of Vesey street in the
city of New York; and a large portion
of the plaintiffs customers, in order to
reach their store, We're obliged to pass
upon the sidewalk in front of the de-
fendant's store Goods were taken TO
and from the Defendants store by means
of trucks loaded in the street The trucks
We're placed in the street adjoining the
sidewalk. and then a bridge made of
two skids planked over so as to make
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 defendants store, and the
other upon wooden horse outside of
the sidewalk near the truck TO be loaded.
The bridge was elevated above the side
walk at the inner end about twelve
inches, and at the outer end about twen-
ty inches, thus entirely obstructing the
sidewalk, and goods were conveyed over
this bridge to and from the store. Per-
sons wishing to pass upon the sidewalk
in front of the store, when the bridge
was in place, We're obliged to step upon
the stoop and go around that end of
the bridge. The bridge was usually re-
moved when not in use; but there was
uncontradicted evidence that it was
sometimes permitted to remain in posi-
tion when not in use, for ten or fifteen
minutes, and that 1t sometimes re-
manned in position when in use one hour.