The Fairmont West Virginian. (Fairmont, W. Va.) 1904-1914, 1911-08-05
JUDGE MASON
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aIonongahela fiser 70 said Jackson
street including tia portion, d saisIi
street running along side said plalils
Ems store building
n This Shows that the propose lean
to to Jones store would be isg
within the fire limits.
Whether tie sihjnnet ion awarded
this morning IS to be perpetuated or
dissolved Is d question that Will de
eide later when the case is argued on.
It's merits. So far there has been no.
notice given that as to the time that
the defendant will ask to have the In.
junction dissolved.
Judge Mason's decision this morn
ing follows:
q g. Jones ss.s
VS. gs (,
Joseph Daddeo and others.
The plaintiff presents his blllto the
Judge OF the Circuit Court alleging
that he has leased from George G.
Yeager, a certain building on the cor
ner of Main and Madison streets In
the City OF Fairmont, for the purpose
of conducting in said building a large.
retail store; that he now occupies
said building for this purpose and has
so occupied 1t for more than fiyeyears
and has the right and intends to
continue such business therein until
March /, 1914; and that the defend
ant Daddeo is about to erect along
Madison street, on the sidewalk, next
to and adjoining said store building
a fruit stand and use it for the sale of
fruits, etc. The bill alleges further
that said fruit stand is being built
under contract with said George G.
Yeager, and that the city council has
glyer permit orlicense to said Dad
dec to erect such stand.
The plaintiff alleges that such stand
erected. upon the sidewalk in said city
will be a nuisance, and that he will
be specially and peculiarly injured
thereby, and states the facts showing
the special injury, and charging that
the injury will be irreparable.
The bill states case which. author
ICES the interposition of a court of
equity by injunction to prevent the in
Jury.
The fact that the defendant Daddeo
has the consent Of the owner Of the
property makes no difference. The
injury complained of will be an injury
to the possession. The plaintiff Is en-
titled to the free and unobstructed
use and possession of the property
for the purpose for which 1t was
leased. Yeager, the landlord, cannot,
by contract made subsequent to the
lease made by him to the plaintiff,
make any binding contract with anil
other by which bis tenant (the plain
TIM, will be deprived Of the use Of the
leased, or in any mannerdls-i
turbed. The injury which Daddeo is !
about to do is not to the building, but /,
to the possession, and Yeager has
passed the possession TO the plaintiff. |
and it is for the plaintiff to consent to ,
any interference with the possession.
The city has attempted to give perl
mission to the creation of the nuis-
ance. It has no authority to do this,
and the order OF council therefore is
ultra wires. A municipal corporation
has no authority by virtue Of its
general or implied powers, to license
the erection or commission Of a nuis-
ance. A building or other structure,
OF like nature erected upon street
or sidewalk, without the sanction OF
the Legislature Is nuisance, and the
local corporate authorities of place !
cannot give valid permission thus
10 OCCUPY streets\or sidewalks with
out express power to this end con.
ferred upon them by charter or stat !
ute. The usual power to regulate and |
control streets has been held not to !
authorize municipal authorities to al /
low encroachment upon streets.
See Dillon on Municipal Corpora
ton, Sec. geo, COL, &c. Edition Of /,
1881.
The city of Fairmont is not author
lied by Its charter or by statute to
allow the erection of nulsances upon
the streets and therefore cannot give
consent.
The injunction may be had against |
Daddco preventing the building Of the !,
fruit stand complained of.
TRAIN PASSENGERS rAkz |