LIMITATIONS ON THE DEGREE TO WHICH THE OFFENSIVE USE OF LAND MAY BE CARRIED
The right of the municipality in any given case to suppress uses of land depends on the language of its charter, but under a universal charter provision a municipality may protect the general welfare of its people, and many uses of land are enjoined under this general power.
1. USES OF LAND WHICH IMPAIR THE FREE USE OF A PUBLIC HIGHWAY
Encroachments on the highway of signs, awnings, posts, porches, stoops, stands, and so forth, are generally included among those offensive uses of land which are prohibited in the exercise of the police power. If their use obstructs the street or diminishes the space available for walking, or impedes traffic, they may be abated or indicted as nuisances, and it is not necessary that the comfort of the public should be interfered with materially.[132]
But the right of suppression is as well put on other grounds. The municipality either owns the land in the highway or possesses an easement in the land for highway purposes, and can prohibit by virtue of this ownership any use inconsistent with those purposes. The case of the Fifth Avenue Coach Co. vs. City of New York, 111 N. Y. Supp. 759, is in point.[133] The action was brought by the plaintiff coach company to enjoin New York City from interfering with advertising signs displayed on the outside of their auto stages which travel on Fifth Avenue. The court denied the injunction on the ground that the plaintiff did not show a clear right to warrant the interference of the court, since the ordinance of the city under which the advertising of the plaintiff company was prohibited was a reasonable regulation of the use of the street and did not operate to impair the plaintiff’s franchise. In discussing the nature of the plaintiff’s advertising business, however, the court said:
“It is along the entrance to parks and along the parks themselves preserved to attract lovers of nature and the beautiful that these unnatural and inartistic moving picture signs are displayed. But out of place, disagreeable and offensive though they are both to the civic pride and esthetic taste, and although the tendency of equitable jurisprudence is to extend its jurisdiction to include this situation, the fact remains that no authority now exists which will justify the legal conclusion that the plaintiff’s signs now constitute a nuisance.”
The decision shows a tendency to give increasing regard to esthetic considerations, since it holds the ordinance a reasonable street regulation. In the same way, without resorting to the police power, the municipality may regulate the use of streets for poles and wires, and may compel the placing of wires underground as a condition of the franchise.
2. USES OF LAND WHICH CONSTITUTE A NUISANCE
A use of land which is inherently unlawful and unprofitable and dangerous to the safety and health or offensive to the morals of a community may be treated as a nuisance, per se. Rotten or decayed food or meat, infected bedding or clothing, mad dogs, animals affected with contagious diseases, and imminently dangerous structures, are conspicuous instances of nuisances per se. Such conditions may be summarily abated without previous notice. A use of land which does not in itself constitute a nuisance, but may become so by reason of its locality or the conditions surrounding its maintenance, may be prohibited altogether or confined to certain parts of a municipality.
Certain occupations are so generally recognized as belonging to the objectionable class, either because of the odors or noises which are inseparable from them, although conducted in the most careful manner, that they are specifically named in municipal charters as nuisances which the municipality may abate. Thus, slaughter houses, glue factories, soap factories, canning factories, smelting works, rendering establishments, stables, and fertilizer factories are generally included in this class.[134] Some of these ordinances have been tested by the courts and found to be a reasonable exercise of the police power: