|Legal Opinion: |
Text of Document: March 13, 1996
You have two questions:
1. Can the city temporarily close certain streets, one or more of which are state highways, in the downtown area of the city for the purpose of permitting local private groups to hold a festival?
2. Can the promoters of the festival charge admission to the festival, and can the city receive a portion of the revenues charged for admission?
The answer to the first question is probably no, and renders the second question moot.
I must admit my surprise at the answer. Street closures by municipalities to promote street festivals of various kinds are probably quite common in Tennessee. In addition, municipalities in Tennessee have police power over their streets, including those streets designated state highways. In fact, state highways in municipalities are merely municipal streets over which state traffic is routed. [See Collier v. Baker, 27 S.W.2d 1085 (1930); Brimer v. Municipality of Jefferson City, 216 S.W.2d 1 (1948); Paris v. Paris-Henry County Public Utility District, 340 S.W.2d 885 (1960).] It has also been held that "very broad powers of regulation, and wide discretion, in the exercise of the police power, are held to be vested in municipalities in touching the use of its streets." [See Steil v. City of Chattanooga, 152 S.W.2d 624, 626 (Tenn. S. Ct. 1941).] It has also been held that the courts will not interfere with the exercise of that discretionary power except in the case of fraud or clear abuse of power. [See Collier v. Memphis, 176 S.W.2d 818 (1944); Blackburn v. Dillon, 225 S.W.2d 46 (1949).]
However, a Tennessee municipality's broad discretion to control its streets apparently does not include the power to temporarily close them to help promote a festival held primarily for private purposes, unless, perhaps, the municipality has been granted such authority by the General Assembly through general law or its charter. I can find no Tennessee cases directly on the question of whether a municipality can temporarily close its streets and license their use to a private person to use for a street carnival or fair, but that question has arisen in other jurisdictions. Those cases appear nearly unanimous that a municipality cannot temporarily close its streets for that purpose. The legal foundation for the holdings in those cases probably applies to Tennessee municipalities. In addition, there are Tennessee cases that indirectly address that question, and they indicate a similar result would be reached by the Tennessee courts.
It is said in 10A McQuillen, Municipal Corporations, sec. 30.99, that:
A city, it has been held, has no power to authorize the use of a street for a carnival and street fair. A fortiori, a municipality cannot confer on a street-fair corporation the right to erect a structure obstructing travel in a public street. Municipal corporations ordinarily are authorized by statute, however, to adopt regulatory ordinances pertaining to such activities, and to control them by means of licensing and revenue measures. And under statutory authority to license and regulate places for sports and public exhibitions, a town board may authorize a society to use its streets, for a few days, for the purpose of a carnival.
The same citation, sec. 30.203 says:
That a municipality may temporarily close a street, where necessary to do so, for a reasonable time, is well-settled. Either the whole, or a portion of the street, may be temporarily closed, for example, pending construction work, or for the entertainment of the public or some class of the public, or for the regulation of traffic, or other public purpose under the police power.
It is also said in 39 Am.Jur.2d, Highways, Streets and Bridges, sec. 140, that:
In accordance with the principle that the streets of a municipality are for the public use, power to close a street temporarily for the purpose of sport or entertainment has been denied in a number of cases wherein the public benefit to be derived therefrom was not made to appear. In applying the rule, the courts sometimes stress the fact that the obstruction or use under consideration constituted a nuisance. It has been held, however, that a street may be closed temporarily to permit its use for the purpose of sport or entertainment where such use is to be exercised for the public welfare or benefit.
TWO SEPARATE LINES OF CASES ADDRESS THIS QUESTION
Both Lines Reach the Same Result
Two separate but related lines of cases address the question of whether a municipality can temporarily close its streets for street carnivals and fairs or similar events. The first line of cases reflects plaintiffs who want a street carnival or fair stopped for one reason or another. [See 34 A.L.R. 270.] The second line of cases reflects plaintiffs who have been injured in connection with the operation of a street carnival and fairs or similar event. [See 84 A.L.R.2d 508.] In both cases, the issue of the municipality's authority to close the streets for those purposes is an important question. The overwhelming number of cases in both categories hold the municipality in question had no authority to close its streets, on one or more of the following several grounds:
- There was no authority in the city's charter or in the general law for the city to close the streets;
- The closing of the streets violated an express statute or the city's own ordinances requiring the streets to be kept open and/or free from nuisance;
- The closing of the street was a nuisance as a matter of law, or a nuisance as a matter of fact;
- The closing of the street was for a private purpose.
Here it should be preliminarily noted that there is no general law or charter authority for the city to close its streets for festival purposes. Your City Charter, which is the general law mayor-aldermanic charter found at Tennessee Code Annotated, section 6-1-101 et seq., gives the city what the courts say is only "ordinary" powers over its streets [Tennessee Code Annotated, section 6-2-201(15) and (16)], and no other provision of the charter appears broad enough to constitute a delegation of legislative authority to temporarily close its streets for the private use by festival promoters. There is also a possibility that it is not within the power of the General Assembly to give the city such authority.
I find nothing in the city's ordinances that requires the city to keep its streets open or free from nuisance. However, we will also see later that municipal officials may have such a duty even in the absence of local ordinance, and that Tennessee probably follows the rule that the temporary obstruction of a street by a carnival, fair or similar event, probably including a street festival, is a nuisance per se, and that streets generally cannot be temporarily closed and licensed for private uses.
Closing of Streets May Also Be "Temporary Taking" of Property
Neither line of cases addresses the question of whether a municipality's temporary closing of streets and the licensing of their use for private street carnivals and fairs or similar events can constitute a temporary taking of the property of abutting landowners, for which the property owners would be entitled to compensation. There are probably two reasons: (1) The cases indicate that the application of nuisance law takes care of the problem, and (2), The temporary taking of property was not generally a big issue even at the time of the latest cases in this area.
However, many of those cases declare the rule that private property owners whose property abuts a public street have special right of access to that property in addition to their right of access in common with the general public to use the streets. The same rule applies in Tennessee. [Knierim v. Leatherwood, 542 S.W.2d 806 (Tenn. 1976); Memphis v. Hood, 345 S.W.2d 887 (Tenn. S. Ct. 1961); Shelby County v. Barden, 527 S.W.2d 124 (Tenn. C. Ct. 1975); Illinois Central Railroad Company v. Moriarity, 135 Tenn. 446, 186 S.W. 1053 (1916); East Park United Methodist Church v. Washington County, 567 S.W.2d 768 (Tenn. Ct. App. 1970); Sweetwater Valley Memorial Park, Inc. v. City of Sweetwater, 213 Tenn. 1, 372 S.W.2d 168 (1963).] But it is not clear under Tennessee law whether the interference with the right of special access by a street carnival or fair would constitute a temporary taking or a nuisance. Most of the cases in other jurisdictions declare such obstructions that interfere with either the right of the general public, or the special right of abutting property owners, to the use of the streets a nuisance. Property owners in Tennessee have been allowed to recover for an inverse taking of property when their special access has been permanently impaired or destroyed [See Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416 (1898), Spence v. Cocke County, 61 Tenn. App. 607, 457 S.W.2d 270 (1969), among others], but the same result might be obtainable if the special access is temporarily impaired. [See East Park United Methodist Church, above.]
I have chosen not to pursue this possible theory of recovery relative to your city's questions because those questions relate to the authority of the city to close its streets. However, mention needed to be made of the possibility that the city's temporary closing of the streets to promote a festival might constitute a temporary inverse condemnation as well as a public nuisance.
THE FIRST LINE OF CASES
34 A.L.R. 70 divides cases that involve the closing of municipal streets for street carnivals and fairs and for other entertainment purposes into two categories: Those in which no public benefit appeared and the closing was held illegal; and those in which a public benefit was found, and the closing was held legal. However, that division is too simple. Virtually all the cases in which the temporary street closure was held legal involve a temporary closing to promote and protect children at play: coasting, sledding and baseball.
The most recent cases specifically involving street carnivals and fairs appear to be Brough v. Ute Stampede Association, 142 P.2d 670 (Utah. 1943), and Dinninger v. Village of Plymouth, 52 N.E.2d 865 (Ct. App. Ohio. 1942). In Brough, the City of Nephi, Utah closed certain downtown streets, and licensed a carnival to operate on those streets for a period of several days in connection with an annual "Homecoming Days," a celebration designed to attract visitors to the city. The Court appears to have held the operation of the carnival a nuisance in fact and in law, the former because the carnival was directly in front of the home of a resident. However, with respect to the latter, the Court also said this in response to the city's argument that the carnival could not be a nuisance because it was a lawfully licensed enterprise:
As to the years 1940 and 1941 the evidence was that the carnival was operated chiefly for the financial benefit of the defendant Monte Young. Its claim that the operation of the carnival was a public benefit and that the city therefore could lawfully license it does not appear to us to be consonant with the facts. While it is true that a city has under its police power the authority to regulate the public highways within its jurisdiction and enact ordinances to effect such regulations, it does not in the absence of legislation have the right to license a nuisance on a public street for a purely private gain. [At 673.] [Emphasis is mine.]
The Brough Court also cited for support City Council of Augusta v. Reynolds, 50 S.E. 998 (S. Ct. Ga. 1917). That case involved the question of whether the city of Augusta, Georgia, could close its principal business street and thoroughfare in the city, and license a company of the state militia to use it for a street carnival lasting a week. There would be a charge for admission to the exhibits and shows, but it is not clear from the case whether admission would be charged for entrance to the carnival itself. The closing of the street was public nuisance, held the Court.
The Court first declared that, "Streets are primarily intended for the use of travelers, and a municipal corporation has no power, in the absence of express legislative authority, to allow a street to be used for any other purpose." [At 998.] Temporary obstructions, continued the Court, are permissible in some circumstances, "even where the obstruction is for the benefit or convenience of the individual." The Court pronounced legal some temporary obstructions created by householders moving into and out of houses, merchants receiving and delivering goods and services, abutting property owners making improvements to property, and builders erecting buildings, and declared it impossible to enumerate all the instances in which a temporary obstruction would be permissible. The rule in all cases involving the temporary closing of a public street, said the Court, was that:
Any temporary obstruction in a public street is presumptively a public nuisance, and it is incumbent upon the persons responsible for the presence of such obstruction to show that it was placed in the street in furtherance of a lawful legitimate purpose, and has not been continued any longer than was reasonably necessary for the accomplishment of this purpose. [At 999.]
The question in this case, announced the Court, was "whether a street fair of the character described in the petition would be such an obstruction of a public street as would make it a public nuisance." [At 999.] Because the fair would be for only one week, the obstruction would not be a permanent one. For that reason, said the Court, "It is to be determined whether it results from a lawful purpose." [At 999.] It did not, declared the Court:
The obstruction is purely for private gain. The fact the promoter of the enterprise is a military company which is a part of the state militia does not make it one inaugurated for a public purpose. It is to occupy not more than one-half of the street. But the public is entitled to the whole of every street, as against anyone who places obstructions therein for other than a lawful purpose. [Citation omitted.] The power given to municipal corporations under the ordinary grants in municipal charters does not authorize the municipal authorities, even by express ordinance, to permit the erection in streets of temporary obstructions for purely private gain. The enterprise described in the petition is not in any sense a public enterprise. It is merely a scheme of private individuals for pecuniary gain, and the use of the street, either in whole or in part, has not as a basis any purpose which the law would recognize as lawful, in the absence of express legislative authority permitting it. In other words, the enterprise to be carried on in the street would, if permitted, be nothing more or less than a public nuisance, and a public nuisance of a most aggravating character. [At 999.] [Emphasis is mine.]
Finally, the Court turned to the city's charter to determine whether any authority was found there for the city to close a portion of one of its streets to be used for a street fair. Provisions containing the "ordinary grants" in reference to the laying out and control of streets was not enough, declared the Court. Neither were provisions giving the city authority to deal with the streets for railroad and depot purposes, provisions permitting the city to permit parts of streets having no general utility to permit platforms, tracks, gang-ways and other structures to be built on them, and provisions governing the vacation of city streets.
The city made the interesting argument that because it had the power to permanently vacate its streets, it could vacate them temporarily and use the land for any purpose beneficial to the commercial interests of the city. The Court also rejected that argument, declaring that under the street vacation statute the city would first be required to find that the street was "no longer of public utility," which it could not do, the street being the main business street and thoroughfare of the city.
Reynolds appears to reflect the law in Tennessee governing temporary obstructions in streets and sidewalks for business purposes. It is said in Rose v. Abeel Brothers, 4 Tenn. App. 431 (1927), that:
While it is true that the primary purpose of streets is use by the public for travel and transportation [Citation omitted.], this use is always subject to the right of those doing business along the streets to obstruct the sidewalks temporarily for the purpose of business. [Citation omitted.] The test is, was the exercise of the right in the particular case necessary, reasonable and temporary? It is ordinarily a question of fact to be solved with reference to time, place and circumstances. [At 433.] [Citation omitted.]
It is probably difficult to argue that closing city streets for a street carnival or fair for private purposes is "necessary" and "reasonable" as well as "temporary."
In Dinninger, the Village of Plymouth, Ohio, periodically closed off certain city streets leading into the city square, and rerouted traffic over other streets, for the purpose of permitting carnivals sponsored by the "Businessman's Association" to operate for periods of several days in the square. A filling station abutting the square alleged damages arising from the operation of the fair. (It is not clear from the facts whether the filling station was inside or outside the public square; presumably, in either case, its business suffered as a consequence of the carnival.) In a brief opinion holding the closing of the streets "presumptively a public nuisance," the Court pointed to a provision of the state's general code that required municipalities to keep their streets open, in repair, and free from nuisance. In addition, it observed that, "From the facts also, it is clear that the carnival was a business venture for individual profit." [At 866.] [Emphasis is mine.]
While I find no general law, charter provision or municipal ordinance requiring the your city to keep its streets free from obstructions and nuisances, City of Nashville v. Hager, 5 Tenn. Civ. App. (Higgins) 192 (1914), says that it is a general proposition "that officials of a city are in duty bound to clear the streets and to prevent encroachments thereon and remove obstructions..." [At 210.] The Court pointed out that this case involved the use of the public square for limited sale of agricultural products rather than the obstruction of traveled parts of the street, and concluded that:
Authorities sustaining the proposition that the officers are trustees of the citizens with respect to streets and that the officials cannot grant to individuals rights which are inconsistent with the use of the streets as travelways and means of ingress and egress are brought to our attention. In the abstract, these statements of the rule are sound, and if we were dealing with the portion of a street that is undoubtedly used for the purposes hereinabove indicated, the propositions would be more appropriate. [At 209.]
The implication of that language is that had the traveled portions of the streets been obstructed by the sale of agricultural products, the obstruction would not have been legal.
In St. John v. Village of North Utica, 157 Ill. App. 504 (App. Ct. Ill. 1010) it was held that the city of Utica, Illinois, "had no power to authorize the use of the streets for the carnival and street fair; such occupancy of the streets for that purpose would have been unlawful; and the tents, booths, platforms, and other structures, if placed in the streets would have been a nuisance per se. [At 507.] The Court also said that such a use of the streets “would be a nuisance and perversion of the use of the streets...." [At 508.]
One point needs to be recognized and addressed here: there is undoubtedly a big difference between the carnivals and fairs at issue in those cases, and the street festivals of today. It is unlikely that the courts would frown upon your proposed festival in the same manner they frown upon the carnivals and fairs at issue in both lines of cases. There is more than a hint of moral condemnation of the street carnival or fair in some of the cases. However, it is the closing of the streets for a private purpose in the absence of legislative authority that is one of the central foci in all of those cases. For that reason, the character of the festival will not save it from that problem.
THE SECOND LINE OF CASES
84 A.L.R.2d 508 points to a separate line of cases involving the question of whether municipalities are liable for injuries arising from temporary obstructions in streets in connection with carnivals and other forms of entertainment. Virtually all of those cases also declare that the municipality in question had no authority to close its streets for those kinds of purposes, and hold such temporary obstructions nuisance per se. (Although they are split on the question of whether more is required to hold the municipality liable for the injury in question.)
In Rueter v. Village of Versailles, 213 F.2d 233 (7th Cir. Ct. App. 1954), the Village of Versailles, Illinois, authorized the local American Legion Post to sponsor a "carnival or street fair" on a state route that passed through the village. The testimony of the mayor was that the carnival or street fair was located "right in the heart of town in the two blocks that had to be blocked, and it was right on the pavement--the main part of Versailles....The carnival completely occupied the street." [At 234.] The carnival was barricaded by ropes and trestles. At 1:00 A.M. the plaintiff's tractor-trailer loaded with hogs overturned in an attempt to avoid striking the barricade, destroying the plaintiff's tractor-trailer and its cargo. The Court, relying on an Illinois statute and the earlier case of Van Cleef v. City of Chicago, 88 N.E. 815 (Ill. S. Ct. 1909), held the barrier, barricade and the carnival an “absolute nuisance per se." [At 234.]
Apparently, the village argued that it was not liable for the tractor-trailer and the hogs because the state highway upon which the fair was located was within the exclusive jurisdiction of the State of Illinois. The Court rejected that argument, declaring that:
It is significant that this carnival was exhibited and conducted, for several days, wholly within the boundaries of the Village of Versailles. This Village cannot now escape liability by arguing that Highway No. 99 was under the exclusive control of the State of Illinois. Quite the contrary, that public highway should not have been used as a fair ground. [At 234.] [Emphasis is mine.]
Furthermore, the state department responsible for state highways "would have had no authority to authorize this municipality to close State Route No. 99, in order to provide a site for this carnival." [At 234.]
The Court also pointed to Illinois State Statutes that gave the village the power, "To prevent and remove encroachments or obstructions upon the streets and other municipal property," and "To prevent and regulate all amusements and activities having a tendency to annoy or endanger persons or property on the sidewalks, streets, and other municipal property." [At 234.] Presumably, that grant of authority imposed an obligation on the city not to permit such nuisances.
In Van Cleef, cited in Rueter, the city council authorized businessmen to use certain streets for a "merchant's carnival and street fair." Mrs. Cleef, in the push of the crowd as she was descending steps from a platform following the show, fell into the street and was injured. Finding the city liable for Mrs. Cleef's injuries, the Court declared that:
There is and can be no dispute of the propositions: That the city had no power to authorize the use of the street for the carnival and street fair; that the occupancy of the street for that purpose was unlawful and the tent and platform a nuisance per se; that the city having by an affirmative act authorized the creation of the public nuisance, became a participant in creating and maintaining it and was not entitled to any notice of its existence or character; and that although it did not itself put up the structure, it became liable for all injurious consequences to any one who might be in a position to complain of the breach of duty by the creation of the nuisance. [At 861.]
That was true even though the city did not build the platform from which Mrs. Cleef fell, concluded the Court:
It is insisted that because a private individual owning premises and leasing them for the purpose of a show, or permitting shows on them, would not be liable for the negligent construction of a platform, the city should not be held liable; but the cases are not alike, since the individual owner has no duty to the public and is not guilty of any wrong in leasing his premises or permitting the shows, while a city is guilty of violation of duty and serious wrong in doing the same thing. [At 817.] [Emphasis is mine.]
It was similarly held that a city had no right to permit a merry-go-round to occupy the intersection of two of a town's principal streets in Malchow v. City of Leoti, 149 P. 687 (S. Ct. Kan. 1915), and that the city was liable for the peculiar injuries suffered by the plaintiff. The plaintiff was en route to a nearby store, and when he passed by the merry-go-round, he took hold of a lantern proffered by an engineer who was working on the merry-go-round's engine. While voluntarily holding the lantern for the engineer, a lubricating glass on the engine broke and a piece of glass struck the plaintiff in the eye. Notwithstanding those facts, the Court declared that:
Attractions of the character in question are purposely designed to entertain and collect crowds of persons, and the fact that the street was taken up with the swing, engine, cable, tank, fuel, guy ropes, and baby rack did not bar the plaintiff from the right to pass over such street, and the trial court properly charged that such obstruction was a nuisance and leaving in the public street was negligence of an aggravated character. [At 688.] [Emphasis is mine.]
Citing Wood on Nuisance (3rd ed., sec. 248 et seq.), the Court continued:
The power to authorize obstructions may be delegated to municipal corporations; but, in the absence of a provision in its charter or some general law upon the subject, a municipality has no more right to license or maintain a nuisance than an individual would have, and for nuisance maintained upon its own property a city is liable the same as an individual would be. Even where a city is given exclusive power over its streets such power must be exercised for the good of the general public, and the city cannot authorize obstructions in its streets for merely private purposes. [At 688.] [Emphasis is mine.]
Finally, in Bogart v. City of New York, 93 N.E. 937 (Ct. App. N.Y. 1911), it was held illegal for a city to close its streets for the purpose of allowing the Automobile Club of America to hold car races. The Court reasoned that, "Highways are constructed for public travel, and as already said, the acts of the defendants were doubtless an illegal interference with the right of the traveler."
Other cases in which the liability of a city was found for temporary obstructions it authorized to be placed in its street for carnival and fair and similar events and similar events are in accord. [See Farrell v. Dubuque, 105 N.W. 696 (1906); Wheeler v. Ft. Dodge, 108 N.W. 1057 (1906); City of Richmond v. Smith, 43 S.E. 345 (S. Ct App. Vir. 1903).] Some cases in this line have held the city not liable for injuries arising from temporary street obstructions. However, even in those cases the courts took the position that temporary obstructions not supported by statutory or charter authority are illegal. [See Trower v. Louisiana, 200 S.W. 763 (1917); Kreiger v. Doylestown, 158 N.E. 197 (1927).]
At least three additional cases involve the question of whether a motorist or a city was liable in tort for injuries arising on streets temporarily closed by the city to permit children to coast, sled or bicycle. In each case the Court concluded that the cities in question had authority to close the streets for those purposes. However, the street closure in each case was authorized by a state statute or charter provision. [See Richard v. Pass, 178 N.E. 643 (S. Jud. Ct. Mass. 1931); Bendorf v. City of Darlington, 143 N.W.2d 449 (S. Ct. Wis. 1966); Lockwood v. Hugo, 61 N.Y.S.2d 793 (S. Ct. Sp. Term, Livingston. 1946).]
TENNESSEE LAW GOVERNING PERMANENT OBSTRUCTIONS--MAY GOVERN TEMPORARY OBSTRUCTIONS
While there are apparently no Tennessee cases on the question of whether a municipality can temporarily close its streets and license their use to private individuals for business purposes, State v. Stroud, 52 S.W. 697 (Ct. Chan. App. Tenn. 1898) holds they cannot permanently close municipal streets for those purposes. However, a common touchstone of the above cases is that the temporary closing of streets for the promotion of private purposes is likewise illegal. For that reason it is arguable that Stroud also applies to the temporary obstructions.
In Stroud, the City of McMinnville licensed Stroud and others to install livestock weighing scales on a busy public street in front of their livery stable. The scales extended slightly into the street. There was ample room for the public to travel the street without interference from the scales. The Court itself formulated the question in the case: "Under the facts, the simple direct question for decision is, did the City of McMinnville have the power and right, under its charter and the law of the state, to license the defendants to occupy a part of a popular street with their scales for personal profit?" "We think not," answered the Court.
The Court's reasoning is worth quoting at some length:
Under the general law a public street is a public highway, and, if a highway, it is a "road which every citizen has a right to use." The right of the citizen to pass and repass on it is limited to no particular part of it, for, as said in the books, "the public are entitled not only to a free passage along the highway, but to a free passage along any portion of it not in the actual use of some other traveler." [Citation omitted.] ....There is no such thing as a rightful private permanent use of a public highway...There is no right in any person to permanently appropriate to private use any part of a public street or alley. [Citations omitted.].... No one has a right to appropriate a portion of a street to his exclusive use in displaying his goods or carrying on his business, even though enough space be left for the passage of the public. [Citations omitted.]....The right of adjacent proprietors in and to the highways is one of which the legislature itself cannot deprive them without compensation, nor can the municipal authorities, broad and comprehensive as their powers are, devote the street to private purposes. This rule goes to the extent that the municipality itself is guilty of maintaining a nuisance if it places a permanent obstruction in a public street. [At 698--699.]
That language standing alone even opens the question of whether a Tennessee city can even be delegated the authority by the legislature to close a city street and license its use to an individual for private gain. After finding that the City of McMinnville had no such authority in its charter or the general laws in any event, the Court spoke more on that question:
It has been repeatedly held by our courts that the rights of granting a franchise or an exclusive privilege to individuals is vested by our constitution in the legislature, to be exercised by it only when it is necessary for the public good; and this is a trust that cannot be delegated. It has been held, therefore, that a municipal corporation of a city has no power, in the absence of legislation, to confer upon individuals by contract the right of constructing and operating railroads on public streets. It is true that the legislature may delegate the power to authorize street railroads to construct their roads on the public streets of cities. But all these powers are exercised to facilitate public travel, for which the public roads or streets were originally designed. While we have found some authorities which seem to sanction the contention of appellees in this case, the great weight of the authority, we believe, is against their contention. [At 699.]
Stewart et al. v. Illinois Central Railroad Co., 143 Tenn. 146 (Tenn. S. Ct. 1920), citing with approval Schopp v. City of St. Louis, 117 Mo. 131, 22 S.W. 898, also says that:
This power to regulate the use of streets is not confined to the regulation of travel thereon, but under it the city may allow gas, water, and sewer pipes to be laid therein, and may cause wells therein to be filled [Citation omitted.], and may permit the erection and maintenance of telephone poles thereon. [Citation omitted.] All these uses are consistent with the uses for which streets are acquired or dedicated. But it does not follow from anything said in any of the cases just cited that the city may lease out portions of the streets for hucksters' stands and stalls.
A general power to regulate the use of streets cannot and ought not to be construed to give the city a right to create a nuisance in the streets, or to devote them, or any part thereof, to any purpose inconsistent with the right of the public or abutting property owners. The 'public highways belong, from side to side and end to end, to the public,' and 'the public are entitled, not only to a free passage along the highway, but to a free passage along any portion of it, not in the actual use of some other traveler,' and the abutting property owner has the right to the free and unobstructed passage to and from his property. [At 157.]
It was also held in State v. Smith, 241 S.W.2d 844 (Tenn. Ct. App. 1950), that, "under its general power to control its highways, the state has the authority to authorize any use of the right-of-way consistent with the purpose of the highway and not in derogation of the rights of the public or those of the abutting landowner." [At 847.] The same rule may apply to municipal streets.
Arguably, that language reinforces the theory that the legislature could not delegate to a municipality the authority to temporarily close its streets to promote a private gain, because such a delegation would not "facilitate public travel, for which the public roads or streets were originally designed." However, most of the above cases do not go that far.
THE MORE LIBERAL (AND MINORITY) VIEW
There is a more liberal view of the right of a city to close its streets and license their use for street festivals.
It was held in State v. Stoner, 79 N.E. 399 (App. Ct. Ind. 1906), that the city could license a fraternal order to hold a street carnival and fall festival under a state statute that authorized the city "to license, regulate or restrain auction establishments, street auctions, and all tables, alleys, machines, devices, and places for sports or games, kept for hire or pay, traveling peddlers, public exhibitions...." It was the Court's view that:
The above statute authorizes boards of town trustees to license and regulate the things therein enumerated, and, having control of the public streets, the board may authorize the use of the streets for such purposes, subject always to the rights of the public and of abutting property owners in the street. By virtue of the town's exclusive power over its streets, it could not authorize a permanent obstruction of a street for merely private purposes, nor could it authorize for such purposes the obstruction of a street so exclusive or so long as to be unreasonable and thus amount to a nuisance..... [At 400.]
However, this case also suggests that the streets in question could not have been closed completely, even if alternative routes around the carnival had been possible:
The authority to license a public exhibition does not necessarily carry with it the authority to give over gratuitously to such exhibition the exclusive use of the public streets....The special finding shows that, while certain streets were partially occupied by the exhibitions, given such occupation was temporary, and that the ordinary use of the streets for travel was not materially interfered with.... [At 400.] [Emphasis is mine.]
In Italian Sons, Etc. v. Common Council of Buffalo, 453 N.Y.S.2d 962 (S. Ct., App. Div. Fourth Dept. 1982), the Common Council of Buffalo denied certain Italian ethnic organizations a permit to close the streets to conduct an annual "Italian Festival." Another Italian ethnic organization was subsequently granted a permit for the same street and purpose. The organizations denied the permit appealed on the ground that the denial was arbitrary and capricious. The trial court summarily rejected the appeal on the ground that the city had discretion whether to grant the permit. The Court reversed the trial court, declaring:
The decision whether to grant a permit to close a public street would ordinarily be "left to the 'untrammeled discretion' of the legislative body," but not if that discretion is exercised arbitrarily or capriciously since a legislative body must act reasonably. [At 963.] [Citations omitted.]
The question of whether a state statute or charter provision permitted the city to temporarily close its streets for street festivals, or whether such a closure was for a private purpose, is not discussed in that case. I searched New York's statutes in vain for one controlling the closure of city streets for that purpose, but had no immediate access to the City of Buffalo's charter (assuming that it has a charter.) Obviously, the temporary closure of streets for ethnic festivals did not constitute a nuisance per se under New York law; the intimation of Italian Sons, Etc. is that such permits were regularly granted.
The City of Atkins, Arkansas could temporarily close the streets to permit children to play baseball in Owens v. Town of Atkins, 259 S.W. 396 (1924). This case could easily be dismissed as being similar to the cases above involving tort liability of persons injured on streets closed for the play of children. However, unlike those cases, there was no state statute in Owens supporting the closure, and the Court distinguished between the permanent and temporary closure of streets, and suggested that with respect to the latter, municipalities had broad authority:
It is well established by the authorities that any city or town council, may by temporary inclosure or obstruction of the streets, divert public travel, when same becomes necessary to meet some exigency or some laudable purpose that conserves the public or private welfare. [At 397.]
However, the Court cites 19 Ruling Case Law, 183 to support that proposition. That authority says:
A municipal corporation may permit a temporary use of a public way for private purposes, especially if it is incidental to or connected with the use or way for travel, or is essential to the reasonable use of the adjoining property. [Citations omitted.] It is, however, a safe and reasonable rule to declare that so long as the alleged obstruction is temporary and reasonable in its character, and is intended for the public safety and convenience, it is no cause of complaint. [At 398.]
I suspect the courts in all the above cases in both lines would have reached the same result under the facts in Owens. It is doubtful that the closing of the street was even for a "private purpose." The town council's grant of authority to close the streets for baseball games was to the school board. The baseball games lasted 1-1/2 hours a day two days a week (presumably only for the baseball season), and the street obstructions were taken down immediately after the games. The Court itself pointed to testimony that, "The streets temporarily inclosed were not main business streets of the town, but residence streets; that no main thoroughfare leading out of the town was closed up at all." [At 397.] The Court also spoke of the:
school board's commendable effort to furnish the youth of Atkins the wholesome sports so essential to their physical development, and also to afford them, and the people of the town, an innocent diversion, which added greatly to their pleasure and entertainment, by providing a park where the great American game of baseball could be played." [At 398.]
That, said the Court, was a use "reasonable and temporary in character, which tended to promote the welfare of the town and which the town council was fully justified in recognizing." [At 398.] So it probably would be in every jurisdiction, but a street festival in the middle of town is an entirely different matter.
The Washington Supreme Court may also take a broad view respecting the power of a municipality to authorize the obstruction of its streets. In Baxter-Wyckoff Company v. City of Seattle, 408 P.2d 1012 (S. Ct. Wash. 1965), the City of Seattle permitted two industries abutting certain city streets to use portions of those streets for industrial purposes, including the location of permanent structures. The city also charged those industries a fee for the use of the streets, which the industries refused to pay.
The industries had to pay the fee, held the Court. Addressing the question of whether the industries were entitled to use the streets for industrial building and storage purposes, the Court declared that, "The basic rule applicable to this case is that there is no inherent right in a private individual to conduct private business in the public streets." [Citations omitted.] [At 1015.] But apparently the city could authorize the private use of the streets. Citing an earlier case, the Court declared that:
The streets and highways belong to the public. They are built and maintained at public expense for the use of the general public in the ordinary and customary manner. The state, and the city as an arm of the state, has absolute control of the streets in the interest of the public. No private individual or corporation has a right to the use of the streets in the prosecution of a business of a common carrier for private gain without the consent of the state, nor except upon the terms and conditions prescribed by the state or municipality, as the case may be. The use of the streets as a place of business or as a main place of business is accorded as a mere privilege, and not as a matter of natural right. [At 1016.] [Emphasis is mine.]
That rule, said the Court, applied to both abutting property owners and to members of the general public. For that reason, continued the Court, the abutting property owner:
simply has no legal right to make this kind of use of the dedicated public street unless an ordinance expressly authorizes permits for such use to be issued by the city, even though no member of the public is inconvenienced by the private use....When a municipality does permit a private individual to construct permanent buildings in the street and have exclusive possession of the street surface for a private business use, such permit is so unusual and beyond the ordinary authority and power of a municipality, thus it may not issue such a permit in the absence of special enabling state legislation. [At 1016.]
It is difficult to tell how far this case can be read for the proposition that municipalities have great discretion with respect to closing their streets in favor of private businesses. First, this case is characterized by peculiar facts. The street in question was dedicated to public use and platted in 1897 on tidelands owned by the state outside the city. Located in territory subsequently annexed by the city, the street was never opened, but the same court earlier held that it had not become vacated by lapse of time. In that respect the "obstruction" of the street was a technical obstruction. Second, although it deals with permanent obstructions in the public streets, the rules announced in Baxter-Wyckoff Co. may apply to temporary obstructions as well. However, that cannot be said with any certainty. Third, while the Court's declaration that absent "special enabling state legislation," municipalities cannot permit private individuals to possess city streets for private purposes is by now a familiar one, nowhere does the Court direct us to such enabling legislation. An ordinance in that case authorized a department of the city to charge the fees in question, but we are not told what, if any, state enabling legislation supported the ordinance. In fact, the Court seems to have relied on the earlier case it cited to conclude that the city had plenary power over the use of the streets for business purposes:
It seems clear to us...that the permit granted by the city to respondents in this case was the grant of a mere privilege, and that the use granted could be prohibited by the city absolutely or could be granted upon such terms and conditions as the city may see fit to impose. This is not a mere matter of municipal regulation. The conditions under which such a privilege will be granted by the city is a matter entirely within the discretion of the city council. [At 1017.] [Emphasis is mine.]
In that respect Baxter-Wyckoff appears similar to Italian Sons, Etc. But it goes without saying that Italian Sons, Etc. (And Baxter-Wyckoff Co, if it applies to the temporary closing of streets) are swimming upstream unless there is some statutory or charter authority that gives the City of Buffalo and the City of Seattle authority to close their streets and license them to private individuals for business purposes.
Sidney D. Hemsley
Senior Law Consultant