The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1915-07-22
NO PRECEDENT ESTABLISHED
Court Holds That Fact That Other
stairways Have Been Put in With
Permits from the Council is No Ex-
cuse or Justification for Defendant.

The right of the city council to limit
the building of areaways and stair
ways along the sidewalks of the city,
lis fully upheld in decision handed
down by Judge Belden in the circuit
court this morning in which the city
was the plaintiff and James Jensen
and DR.. Germano and others the de-
PENDANTS. Judge Belden holds that the
injunction secured by the city against
the continuation Of the stairway in the
sidewalk at the Germano building at
the corner Of Market street and How
land avenue, shall become permanent.
He holds that the stairway is a NUS
ance and menace and must be
removed
The case has been one in which there
has been more than usual interest and
it had been matter for council action
on many occasions. The council refus-
ed to permit the installation of the
stairway, but the owner of the prop
erty defed the council order and went
ahead and put in the stairway. Then
came orders for removal of the menace
and these were met by inaction. The
owner of the building repeatedly ap-
peared In person and by attorneys be-
fore the council and declared that his
right to keep the sidewalk had been
guaranteed on account of the fact that
the city council had on former occa-
sions issued permits for just such kinds
of sidewalks and that other sidewalk
steps had been permitted to exist in the
city without action of the council.
The entire defense of Germano was
that he was being Disseminated,
against by the city council In his de-
cision Judge Belden holds that the
fact that the city had permitted SINH
lar violations of the law was no excuse
or justification for the Germano stair
way. The decision of the court is re-
garded as a most important one by the
city officials as it offers precedent to
govern similar cases in the future. 1t
is possible that the attorneys for the
defendants will take the case to the
state supreme court, but no notice of
such an appeal has been fled. In his
decision Judge Belden said:
Gin the summer of 1913, the defen-
dants Germano and wife erected
building on land AUDITING and up to
the line of Market street in the city of
Kenosha, the legal title of which is in
the defendant Jensen under land con-
tract to the defendants Germano.
At Che south side of said building
extending into and encroaching upon
the public street and sidewalk, the de-
PENDANTS constructed and maintained
an open cellarway or stairway to the
basement of said building, contrary to
and in violation of the ordinance of
the plaintiff city, the orders of plain
tiff s common council and the statutes
of Wisconsin.
The cellarway in question is
menace to travellers using said street,
exposing them to danger and the plain
tiff city to liability for damages. 1t
is an encroachment upon and nuisance
within the public street, the existence
and maintenance Of which the plain
tiff is entitled to have abated and
perpetually enjoined by means of the
equitable relief sought. The other
similar situations existing within said
city by leave or sufferance of its com
mon council or in violation of law is no
excuse or justification for defendants.
Judgment may be. entered in accord
ance with the prayer of the COM
plaint.n