or gas mains,930 or conduits for electric wires or pneumatic tubes, the stringing of wires or electric poles, 31 are all uses regarded as legitimate and proper and which cannot be regarded either as a nuisance or an obstruction. In the erection of poles or the stringing of wires, however, the same principles governing private persons with respect to the rights of abutting owners to access, air and light will also control public authorities.932 The rule above given in respect to public improvements, sewers, water and gas mains or pipes, apply not only to the original construction of these improvements or facilities, but also to the use of the highways for their change or repair.933

§ 875. Use of public buildings or public facilities.

Public corporations also have ample power to adopt and enforce all necessary regulations in respect to the use by individuals or public officials of public buildings 93+ or public facilities,935 the latter including, ordinarily, landing places 36 or wharves,

930 Swart v. District of Columbia, 17 App. D. C. 407; Boston v. City of Hoboken, 33 N. J. Law, 280; Crooke v. Flatbush Water-Works Co., 29 Hun (N. Y.) 245; Smith v. City of Goldsboro, 121 N. C. 350, 28 S. E. 479. See, also, §§ 437 et seq., 460, and 818, ante, and 886 et seq., post.

931 Village of London Mills V. Fairview-London Tel. Circ., 105 Ill. App. 146; Domestic Teleg. & Tel. Co. v. City of Newark, 49 N. J. Law, 344.

932 Hershfield v. Rocky Mountain Bell Tel. Co., 12 Mont. 102.

933 Runyon v. Bordine, 14 N. J. Law (2 J. S. Green) 472.

934 San Joaquin County v. Budd, 96 Cal. 47, 30 Pac. 967; Scofield v. Eighth School Dist., 27 Conn. 499; State v. Hart, 144 Ind. 107, 33 L. R. A. 118; Herbert v. Benson, 2 La. Ann. 770; Borough of Henderson v. Sibley County, 28 Minn. 519; Pancoast v. Troth, 34 N. J. Law, 377.

935 State v. Chicago, M. & St. P. R. Co., 77 Iowa, 442, 4 L. R. A. 298; Westfield Borough v. Tioga County, 150 Pa. 153.

936 Keokuk N. L. Packet Co. v. City of Keokuk, 95 U. S. 80; District of Columbia v. Johnson, 12 D. C. (1 Mackey) 51; Shinkle v. City of Covington, 64 Ky. (1 Bush) 617. A city keeping a wharf and charging for anchoring the boats is bound to protect them against the dangers of ordinary floods. Culbertson v. The Southern Belle, Newb. 461, Fed. Cas. No. 3,462; Remy v. Municipality No. 2, 15 La. Ann. 657; Watson v. Marshall, 16 La. Ann. 231; Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 10 Mo. App. 401; People v. Mallory, 2 Th. & C. (N. Y.) 76; Northwestern Union Packet Co. v. City of St. Louis, 4 Dill. 10, 23 Int. Rev. Rec. 33, Fed. Cas. No. 10,345. But see Northwestern Union

ferries, and public waters.938 Their rights in these respects. include a control of the time and manner of use by the public," the charge to be made for a public inspection of public records 940 or the use of facilities offered.941

§ 876. Protection of public property.

Public authorities have full power to care for, and protect from injury or destruction, property owned or held by public corporations either directly or as a trustee for the public, having in view the purposes for which the particular property may have been acquired, and its legitimate use by the public.942 Under an appli

cation of this principle, regulations may be adopted and enforced relative to the breaking or trimming of shade trees943 or the preservation of public waters, harbors and water channels.***

877. Removal of obstructions.

Public corporations possess the power to acquire varying interests in property for the objects and purposes for which they may be directly or indirectly authorized. The right to protect these property interests and preserve them for the various uses for which originally acquired is co-extensive with the power and purpose of acquirement. Not only is this right thus possessed but the law imposes upon them the duty of protection and preservation. These principles are self-evident upon a consideration of the nature of public corporations and the purpose of their organization. It follows, therefore, logically and legally, that they may, in the manner prescribed by law, effect the removal of all obstructions or encroachments upon public property whether temporary or permanent in their character and without considering the further condition of whether such obstructions and encroachments constitute a nuisance. Property acquired by public corporations in this capacity is charged with a public character.946

943 Taylor v. Reynolds, 92 Cal. 573; Burnham v. Hotchkiss, 14 Conn. 311; Bills v. Belknap, 36 Iowa, 583; Com. v. Wilder, 127 Mass. 1; Consolidated Traction Co. v. Township of East Orange, 61 N. J. Law, 202, 38 Atl. 803. See, also, §§ 880 and 916, post.

An

944 City of Ogdensburgh v. Lyon, 7 Lans. (N. Y.) 215; Coonly v. City of Albany, 57 Hun, 327, 10 N. Y. Supp. 512, 132 N. Y. 145, 30 N. E. 382; City of Portland v. Montgomery, 38 Or. 215, 62 Pac. 755. ordinance establishing a wharf line will be presumed to be reasonable unless the contrary is shown. Walpole v. City Council, 32 S. C. 545, 11 S. E. 391; Wisconsin River Imp. Co. v. Lyons, 30 Wis. 61.

945 People v. Com'rs of Highways,

130 Ill. 482, 22 N. E. 596, 6 L. R. A. 161, reversing 29 Ill. App. 115; Bitzer v. Leverton, 9 Kan. App. 76, 57 Pac. 1045; Gray v. Henry County, 19 Ky. L. R. 885, 42 S. W. 333; Nichols v. City of Minneapolis, 33 Minn. 430; City of Newark v. Delaware, L. & W. R. Co., 42 N. J. Eq. 196, 7 Atl. 123; Kunz v. City of Troy, 48 Hun, 619, 1 N. Y. Supp. 596; Waukesha Hygeia Mineral Spring Co. v. Village of Waukesha, 83 Wis. 475, 53 N. W. 675. See, also, cases cited generally under this section.

946 Clift v. State, 6 Ind. App. 199; State v. Wertzel, 84 Wis. 344; Crismon v. Deck, 84 Iowa, 344; Ricker v. Barry, 34 Me. 116. It is no defense in an action for obstructing a public way that the plaintiff ob

Highways and pleasure grounds especially are secured for a devotion to certain public uses, the nature of which has been already sufficiently defined and discussed.047 The public in whom may be vested the right to enjoy for certain lawful purposes and in a prescribed manner cannot be deprived of this right permanently or temporarily by a use or occupation which destroys or impairs that right.948

878. Removal of nuisances.

It is not every use or act in a highway that may constitute an obstruction in the technical and literal sense of that word, and, further, there are many uses which abutting owners may make of public grounds which cannot be regarded either as obstructions or nuisances unless continued for such a length of time or done in such a manner as to conflict with the superior right of the community as a whole to use these highways or grounds as a means of travel or recreation which is regarded as the primary and superior purpose for which they are acquired and maintained.949 The construction of a tunnel underneath the street or the passageway in the air over it, the placing of awnings,950 or the construction

18 Tex. 858. See §§ 853 et seq., ante and §§ 887 et seq., post.

949 Webb v. City of Demopolis, 95 Ala. 116, 21 L. R. A. 62; City and County of San Francisco v. Buckman, 111 Cal. 25; City of Columbus v. Jaques, 30 Ga. 506; Attorney General v. Brighton & H. Co-op. Supply Ass'n, 69 Law Ch. 204.

950 City Council of Augusta v. Burum, 93 Ga. 68, 26 L. R. A. 340; Pedrick v. Bailey, 78 Mass. (12 Gray) 161; Hawkins v. Sanders, 45 Mich. 491; Fox v. City of Winona, 23 Minn. 10; Bohen v. City of Waseca, 32 Minn. 176; Hisey v. City of Mexico, 61 Mo. App. 248; Farrell v. City of New York, 52 Hun, 611, 5 N. Y. Supp. 580; Lavery v. Hannigan, 52 N. Y. Super. Ct. 463; Hume v. City of New York, 74 N. Y. 264.

of projections from buildings 951 in a street, do not constitute obstructions to public travel and yet they may be removed as nuisances. One may also so drive or walk in a public highway,252 or employ a startling or novel mode of progression,953 in such a manner as to constitute a nuisance.

Definition of a nuisance. In a discussion of nuisances it is well to remember the definition of a nuisance and the principles laid down in those sections relating to the subject which control public authorities in their abatement.954 This particular principle is so important that it will bear repetition, namely, that it is not legislative or official action in itself or by itself which can constitute an act or use of property a nuisance, when considering the circumstances and conditions which create one, it is not of this character.955

§ 879. Authority for removal of obstructions or nuisances.

The power as vested in public authorities to remove obstructions or nuisances is a continuing one,956 need not be expressly granted in all cases, ,957 and further, is one which cannot be contracted or

951 People v. Holladay, 93 Cal. 248; Hawley v. Harrall, 19 Conn. 142; Day v. Green, 58 Mass. (4 Cush.) 433; State v. Higgs, 126 N. C. 1014, 48 L. R. A. 446. See, also, § 869, ante.

952 Reg. v. Williams, 55 J. P. 406. Four men walking abreast on a pavement causing others to go into the carriageway in order to pass them does not constitute an unlawful obstruction of the highway. People v. Cunningham, 1 Denio (N. Y.) 524; Barker v. Com., 19 Pa. 412. 953 Jackson v. Castle, 80 Me. 119; Taylor v. City of Cumberland, 64 Md. 68.

954 See §§ 137 et seq., ante.

955 Nutter v. Pearl, 71 N. H. 247, 51 Atl. 897. The question of whether a stepping stone is a nuisance is one for the jury. Avis v. Borough of Vineland, 56 N. J. Law,

474, 28 Atl. 1039, 23 L. R. A. 685. See, also, §§ 137 et seq., ante.

Question for jury. Burnham v. Hotchkiss, 14 Conn. 311; Zimmerman v. State, 4 Ind. App. 583; Hopkins v. Crombie, 4 N. H. 525.

956 Wabash R. Co. v. City of Defiance, 167 U. S. 88; Ely v. Parsons, 55 Conn. 83; Atwood v. Partree, 56 Conn. 80; Jones v. Williams, 70 Ga. 704; Hurst v. Cassiday, 5 Ky. L. R. 771; Graves v. Shattuck, 35 N. H. 258; Cook v. Harris, 61 N. Y. 448; Compton v. Waco Bridge Co., 62 Tex. 715.

957 City of Terre Haute v. Turner, 36 Ind. 522; Bitzer v. Leverton, 9 Kan. App. 76, 57 Pac. 1045; Dudley v. Trustees of Frankfort, 51 Ky. (12 B. Mon.) 610; City of Philadelphia v. Philadelphia & R. R. Co., 58 Pa. 253.