Rowe, Jr. v. Cincinnati , 26 Ohio App. 87 ( 1927 )

Harry Rowe, Jr., filed a petition, an amended petition, and a supplemental petition.

He states therein that he is conducting a business at No. 3439 Michigan avenue, Cincinnati; that he leases the building from John E. Sullivan; that about the year 1910 his predecessor, with the knowledge and consent of the director of public service and the other defendants, erected on the sidewalk contiguous to the front of the said premises two pumps to be used in the sale of gasoline. He then states their cost, and that they had been used continuously from that time to the present, and pleaded ordinance No. 289-1925, which ordinance makes it a misdemeanor, punishable by a fine of $100, and a public nuisance, to own, maintain, or operate any such pump, and directs the city officials to remove such pumps. He further states that council declared said ordinance to be an emergency measure, that should go into effect upon its passage. He says that said ordinance is void as being in contravention of the Constitution of the United States and of the Constitution of the state of Ohio, and refers to Article XIV, Section 1, of the Constitution of the United States, and ArticleI, Section 19, of the Constitution of Ohio.

After making numerous admissions, the answer states that the sidewalk space on the west side of Michigan avenue, abutting the premises of the plaintiff, is 10 feet wide; that the plaintiff has unlawfully appropriated to his own use more than one-third of said 10 feet of sidewalk space, to wit, 3.35 feet; that Michigan avenue is a much-traveled thoroughfare; and that on July 7, 1925, council of the city of Cincinnati found that the continued maintenance and operation of gas pumps on the sidewalks of the city constitute, and are, a public nuisance, and an obstruction to traffic. Defendants plead that on February 2, 1922, the city planning commission adopted a resolution, as follows:

"That all service to auto vehicles of what character soever in, across, from or on any sidewalk, street, alley, avenue, or public way in the city of Cincinnati constitutes an obstruction to traffic, a public nuisance, and that the same be and hereby is ordered prohibited, excepting, however, that all equipment heretofore installed, under lawful authority, may, by virtue of said authority, be permitted to remain until the first day of January, 1925, at which time, all equipment shall be removed from the street or sidewalk."

In pursuance thereof, on December 20, 1924, all permits for operating gas pumps on sidewalks were revoked, to take effect January 1, 1925.

Much law and many cases are cited on both sides, but the simple facts are: These pumps were used in a private business of the plaintiff; they were occupying a public street; the permits were revoked; and owners were given almost two years within which to remove the pumps.

The permit did not give the plaintiff any vested right in the street, and, when his permit was revoked, the city had a right to order the pumps removed at any time. He did not have any property right in the street, and, therefore, there was no taking of property without due process of law. This is a penal ordinance and the city had the right to arrest and fine him for a violation thereof. All questions as to the validity of the ordinance and the rights the plaintiff had in the use of the street could be raised by him, in an action at law.

The law is that, when a legal remedy is given, equity will not interfere by injunction, but the rights of the parties must be worked out in the law action.

Counsel for plaintiff, in oral argument, claimed that these pumps served a public purpose, in that the public could purchase gasoline at the curb, instead of driving over the sidewalk into private property.

"The gasoline tanks, while no doubt useful to many persons using the public streets, constitute a nonessential and private use — a use for the gain of the owner of the stand, and not a use in a public or even quasi public capacity." Kahabka v.Schwab, 205 App. Div. 368, 199 N.Y.S., 551.

The use of the sidewalk by the owner of an abutting lot is governed by the statute. Section 12639, General Code, makes it an offense, punishable by fine and imprisonment, to set any article to use or let for profit on any avenue, walk, or sidewalk, constructed according to law. A municipality, under this statute, would not have any authority to grant a permit to use an avenue, walk, or sidewalk of the city for private business purposes, and, where such articles as gasoline pumps are on the sidewalk, the municipality violates Section 3714, General Code, in not causing them to be removed at once, and in not keeping the street open, in repair, and free from nuisance.

It follows that the permit to erect these gasoline pumps in the sidewalk did not vest any property right in the plaintiff. See Wabash Rd. Co. v. Defiance, 52 Ohio St. 262, 40 N.E. 89; Heddleston v. Hendricks, 52 Ohio St. 460,40 N.E. 408.

The injunction will be denied, and plaintiff's petition dismissed at his costs.

Petition dismissed.

HAMILTON, P.J., and BUCHWALTER, J., concur.