The Court of Appeals of New York, in speaking of the right of an abutter to temporarily occupy the street adjacent to his lot, said: "Two facts must, however, exist to render the encroachment lawful: (1) The obstructions must be reasonably necessary for the transaction of business; (2) it must not unreasonably interfere with the rights of the public. . . . The foundation upon which the exception seems to act is, that it is better for the public to suffer a slight inconvenience than for the adjacent owner to sustain a serious loss. Any unnecessary or unreasonable use of the street, however, is a public nuisance.

914

It should also be noted that it is not suf

ficient, to come within the exceptions, that the obstructions are necessary with reference to the business of the person who maintains them; but they must also be reasonable with reference to the rights of the public."

Law of Necessity.-It will thus be seen that the right of an abutter to occupy the street in front of his lot temporarily arises practically out of the law of necessity,-a necessity which is more pressing than the inconvenience the public will experience by its existence; and one which if not permitted would cast upon the lot owner a greater loss than the public would suffer if he be permitted to occupy the street with his materials. In the case of rails of a street car company laid in a street the ben

(4)

Flynn v. Taylor, 127 N. Y. 596, 28 N. E. 418, 14 L. R. A. 556.

(5) Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 269: 1 Am. St. 831. The following cases also cover the principles announced in these several quotations: Chicago v. Robbins, 2 Black 418, 17 L. ed. 298; Clark v. Fry, 8 Ohio St. 358, 72 Am. Dec. 590; Van O'Linda v. Lathrop, 21 Pick. 292, 32 Am. Dec. 261; Mallory v. Griffey, 85 Pa. St. 275: Hundhauser v. Bond, 36 Wis. 29; Raymond v. Keseberg, 64 Wis. 302, 54 N. W. 619, 19 L. R. A. 643; Rex v. Ward, 4 Ad. & El. 405, 31 E. C. L. 92; Rex. v. Jones, 3 Camp. 230: Welsh v. Wilson, 101 N. Y. 254, 4 N. E. 633, 54 Am. Rep. 698; Halsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 380. 20 Atl. 859; Tompkins v. North Hudson R. Co., 63 N. J. L. 322, 43 Atl. $85; Mathews v. Kelsey, 58 Me. 56, 4 Am, Rep. 248; Jochem v. Robinson. 66 Wis. 638, 29 N. W. 642. 57 Am. Rep. 298, and 72 Wis. 199, 39 N. W. 383, 1 L. R. A. 178.

efit to the public is greater than the inconvenience to it; and besides the rails of necessity must be laid there, because there is no other place they can be laid so the public can be accommodated.

No Absolute Right of Public to Unobstructed Street.-In an Illinois case it was well said: "The public has a permanent right to the use of the public street in all its parts. That right is the right of all persons to pass over it freely and without impediment whenever they have occasion. The right is not, however, an absolute right in every person at all times. It is subject to such incidental and temporary or partial obstruction as manifest necessity may require. The use of the street by one person or company of persons passing along it interposes an obstruction to any other person or persons occupying the same part of the street at the same time, for the same purpose. Large numbers of persons using the street merely for passage on foot may, frequently do, impede the free and uninterrupted use of the street by other large numbers going in different directions or desiring to go faster or slower. The stopping of persons on the sidewalk or vehicles in the street for any temporary purpose. interferes with the free use of the sidewalk streets by street cars and railroads interferes with such use by other vehicles and by foot passengers. The right of a person using a street for which a railroad has been lawfully constructed is the same as that of the railroad company, but he must submit to the obstruction caused by the trains of the latter. The public right to the unobstructed use of the street in all its parts is, therefore, not absolute but relative."

Liberty of Speech.-But the obstructions we have been discussing are very different from the obstructions of a street by causing a crowd to gather in it for political or religious or other purposes. Such a gathering is not one of necessity; for it can be held readily elsewhere, perhaps, in a crowded city, not without cost, or it could be held in the stree*.

(6) Tolman & Co. v. Chicago, supra.

but there is no such imperious necessity in such an instance as there is to lay timbers in the street when building a structure on an abutting lot. It has been claimed that as the constitution guarantees the right of free speech and the right of the people to Feacefully assemble to discuss political or religious or other like questions, this gives them the right to assemble in the streets for that purpose; but this is a misapplication of the privileges thus guaranteed. There is

no necessity why such gatherings or meetings should be held in a street, such as is the case of the laying of timbers in it.

King v. Moore.-This is one of the early English cases, and it was decided in 1832. Moore was indicted for having gathered a crowd in a public highway which obstructed the passage of travelers. The charge was that he kept certain inclosed lands near the highway for the purpose of persons frequenting them for rifle shooting and to shoot pigeons with firearms; and that he unlawfully and injuriously caused divers persons to meet and frequent there, and permitted, suffered and caused a great number of idle and disorderly persons, armed with guns and firearms, to meet and assemble in the streets, highways and other public places near and about such premises, who discharged firearms and made a great noise, disturbance and riot, by means of which the king's subjects were disturbed and put in peril. The evidence did not, however, show that these people gathered in the street or highway; but it is quite evident that the conduct of those gathering near the accused's premises so conducted themselves in the use of firearms as to endanger passersby, and, in a way, impede its

free use.

It was contended that the persons thus gathering were the offenders and not the defendant; but the judge, without saying they were or were not, held that the accused was rightfully convicted, having violated the law. "The defendant asks us to allow him," said Lord Tenterden, "to make a profit to the annoyance of all his neigh

bors; if not, it is said we shall strain the law against him. If a person collects together a crowd of people to the annoyance of his neighbors, that is a nuisance for which he is answerable. And this is an old principle. Here the defendant invited persons on his own ground to shoot pigeons. The effect of this is, that idle people collect near the spot they tread down the grass. of the neighboring fields, destroy the place, and create alarm and disturbance. It is not found that the defendant has attempted to prevent their so collecting. He has, indeed, had them driven off his own ground, but that is all. I cannot say that the verdict is wrong." Justice Taunton quoted Hawkins' Pleas of the Crown where he refers to common stages for rope dancers, and all common dancing houses as nuisances in the eye of the law. "not only because they are great temptation to idleness, but because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighborhood. Also, it hath been holden that a common playhouse may be a nuisance if it drew together such numbers of crowds or people as prove generally inconvenient to the place adjacent."

Rex. Carlisle.—This case was two years later. later. The charge was that the defendant. exhibited and exposed in a house on Fleet street three scandalous and libelous effigies, with intent to attract the notice and attention of passersby in the street, whereby some forty persons, as well men as women and children, and idle, dissolute and disorderly people, wrongfully assembled in the street near the dwelling house bordering thereon for the space of ten hours in each several days, by means of which the street, on those days, "was greatly obstructed and straitened," so the subjects of the king, during such times, 'could not go, return, pass or repass" along the street "so freely and conveniently as they had been used to do, to the great damage and

(7) Rex v. Moore, 3 Barn. & Adolph 184, 23 E. C. L. 88.

common nuisance of all the liege subjects" of the king in and along the street "going, returning, passing and repassing, and there inhabiting and residing." The defendant was a book seller, and the things he hung in his window were cuts of pictures he had on sale. Justice Park in answer to the defendant's statement, that if his neighbor was injured he ought to bring action, said: "No doubt, if a man does an act which injures a particular neighbor he is not liable to be indicted if no one else but the neighbor is injured, but if a place is situate near a highway, and the defendant do that which cause the persons passing to be prevented from passing as they ought to do, and, besides this, people are annoyed in the occupation of their houses, this is a nuisance, for which the party is indictable." The accused argued in person that if he was guilty then the procession of the judges going to St. Paul's was illegal, but Justice Park said that the crowd that look on at it moved with the procession, and did not stand obstructing the street. To the illustration of the crowds drawn together on the Lord Mayor's Day, Justice Park said "that is but one day in the year; and if, instead of that, the Lord Mayor's Day lasted from October to December, I should say it ought to be put a stop to." The accused was convicted.

People v. Cunningham.-This is a leading case in America; and while not an instance of addressing a crowd in a street, it is quite analogous to such an instance. The defendant was indicted for maintaining a nuisance in the street in front of his distillery, by permitting carts and teams to remain in the street near his distillery, for the purpose of receiving slops. The slops were delivered through pipes running across the sidewalks, at a sufficient eleva

(8) Rev. v. Carlisle, 6 Carr. & Pay. 636, 25 E. C. L. 614. Justice Park refers to an illustration of Lord Ellenborough in Rex. v. Cross, 3 Camp. 224, when he said that a stage coach may set down or take up passengers in the street, this being necessary for public convenience, but it must be done in a reasonable time.

tion above the walk as not to impede pedestrians. From an early hour in the morning until late in the evening, every day, the street at this point was thronged with teams of "swill-drivers." waiting to be served by the defendants, the drivers of which indulged in coarse and obscene language and crowded and fought for priority, and travel upon the street was constantly and greatly impeded. The accused was convicted, notwithstanding their claim that what they had done was lawful, because the position and extent of their establishment and business and its peculiarity it was necessary for them to do what they had done. To their contention that they were not responsible, for the reason that the carts and teams which occasioned the nuisance were not theirs, but were owned and controlled by others, who alone were liable, the court said. "The defendants take possession of one side of a public street from which to supply their customers with an article furnished from the distillery. By that act they invite those who deal with them to come to that place to receive it, with such vehicles and teams as are used; and this effect is to obstruct the street in the manner complained of. This effect was, it seems to me, the probable consequence of the defendant's acts. The acts of the persons assembling in the street to receive the slops of the distillery, and conducting themselves and their teams and carriages in the manner described, must be accounted the acts of defendants. They furnished the occasion and gave out the invitation, and no obstruction of this kind would have taken place or would be likely to take place in that street, if the occasion of the assembling of such persons for the object mentioned was removed.""

Turner v. Holtzman.-This case comes somewhat closer to the questions we are discussing than the three previous cases. It

(9) People v. Cunningham, 1 Denio. 524, 43 Am. Dec. 709. The court relied upon Commonwealth v. Passmore, 1 Serg. & R. 219; King v. Russell, 6 East 427; Rex v. Carlisle, 6 Car. & P. 636: Rex v. Jones, 3 Camp. 230, and King v. Moore, 3 Barn. & Adol. 184.

was here held that a stage coach stopping for an unreasonable time on a public highway, in front of and obstructing the entrance to a camp meeting ground, was a nuisance, and might be removed by those who are inconvenienced, or by a deputy sheriff. In the three former cases the prosecutions were by the government for a criminal obstruction of the highway; this was an action for assault and battery, to recover damages occasioned in an effort by a deputy sheriff to remove an obstruction in the highway in front of a private business. The deputy sheriff was one of the managers of the camp meeting. The stage coach obstructed the entrance to the camp meeting grounds; and was kept there, notwithstanding reported requests of directors to move on so others could gain entrance with vehicles. The conduct of the driver, acting under orders from the owner of the stage coach, was most exasperating. "Persons have a right to travel over public streets and roads," said the court, "stopping only for necessary purposes, and then only for a reasonable time. Stage coaches may stop to let down and take up passengers, as this is necessary for the public convenience; but this must be done in a reasonable time. A person traveling on a highway must do so in such a way as not unnecessarily or unreasonably to impede the exercise of the same right by others; and if he does not exercise this right in a reasonable manner, he is guilty of a nuisance."10

State v. Edens.-This case, to some extent throws some light on the subject we are discussing. On a certain day the accused "stood with his cart and mule near the angle made by two streets, one of which was ninety-nine and the other sixty-six feet wide, for the space of one hour and a half, during all of which time there was

(10) Turner v. Holtzman, 54 Md. 148, 39 Am. Rep. 361. The court cited Rex v. Cross, 3 Camp. 226; Rex v. Jones, 3 Camp. 230; People v. Cunningham, supra; and Wood on Nuisance, § 529. As bearing on a similar instance see McCaffrey v. Smith, 41 Hun. 117; Lippincott v. Lasher, 44 N. J. 120; Branham v. Hotel Co., 39 Ohio St. 333, 48 Am. Rep. 457, 2 Am. & Eng. Corp. Cas. 1.

the usual passing of vehicles and foot passengers everyway up and down the streets." He was indicted for having committed a nuisance; but as there was no permanent obstruction, the court said an offence was not shown, for "the question as to which is a proper and reasonable use of a highway must depend in a great measure upon its locality, its accustomed usage, and the exigencies of the public, it being apparent that what would obstruct travel and work an inconvenience to the public in the crowded streets of London, or on Broadway in New York, might be harmless in the streets of a less populous place."11

Street Parades.-Phases of the question under discussion are presented in cases in relation to street parades by political or other organizations involving the reasonableness of municipal ordinance and their validity as well as the validity of statutes enacted by the legislature. A statute empowered the Common Council of Boston to

regulate "itinerant musicians," and pursuant to this authority the council provided that "No person shall sing, or play, or perform on any musical instrument in the streets or public places of the City of Boston, except in connection with a funeral, a military parade, or a procession of a political, civic or charitable organization for which a police escort is provided, unless licensed thereby by the Board of Police." This ordinance was held not only valid but reasonable, and to apply to a member of the Salvation Army, playing on a cornet in a parade of that organization in the streets. The defendant insisted that his playing the cornet was done as a matter of religious worship only, but the court answered "this defense cannot avail to protect him from the consequences of an act which is made subject to a penalty under the law. The provisions of the constitution, which are relied on," continued the court, "securing freedom of religious worship, were not designed to prevent the adoption of reasonable rules and regulations for the use of

(11) State v. Edens, 85 N. C. 522.

streets and public places; and a religious body, however earnest and sincere, cannot avail itself of those provisions, as an authority to the possession of a street in a city, in violation of such rules, for the purpose of public worship therein. The fact is there is no actual disturbance or breach of the peace, on the particular occasion, is immaterial." The exaction of a small fee for the license was also held not to render the ordinance invalid.12

And so the legislature may authorize a military parade in the streets, and provide for the punishment of any person who wilfully disturbs or interrupts the pro

cession.13

There is no right to carry a red flag in a procession when those composing it know that the natural and inevitable consequence will be to disturb the public peace and tranquility, in violation of a statute or ordinance.13a

A statute authorizing a city to maintain an exhibition of its manufactures, resources and industrial enterprises, and to give such free or paid performances, spectacles, entertainments, or parade as may to it seem proper and advisable, does not authorize it to erect a structure in streets for the use of such spectacle which will obstruct travel.14

Where processions would, for an unreasonable time, obstruct travel on the streets, or injuriously affect business, and be carried on to such an extent and for such time as to be an annoyance and a nuisance to the public, a city may by ordinance prohibit them and punish the persons making such an unreasonable disturbance. 15

(12) Commonwealth v.

Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. 566; Roderick v. Whitson, 51 Hun. 620, 4 N. Y. Supp. 112; State v. White, 64 N. H. 48; Bloomington v. Richardson, 38 Ill. App. 60.

(13) White v. State, 99 Ga. 16, 26 S. E. 742, 37 L. R. A. 642; Wilkes-Barre v. Garebed, 9 Kulp, 273 (a Salvation Army case).

(13a) People v. Burman, 154 Mich. 150, 117 N. W. 589, 25 L. R. A. (N. S.) 251.

(14) Richmond v. Smith, 101 Va. 161, 43 S. E. 345.

But these views have not been accepted by all the courts. Thus an ordinance of a Kansas city made it unlawful "for any person or persons, society, association or organization, under whatever name, to parade any public street, avenue or alley” of the city, "shouting, singing or beating drums or tambourines, or playing upon any other musical instrument or instruments, or doing any other act or acts designed, intended or calculated to attract or call together an unusual crowd or congregation of people upon any of said public streets. avenues or alleys, without having first obtained in writing the consent of the mayor of said city, authorizing such parade." Funerals, fire companies, regularly organized companies of state militia or United States troops were expected from its provisions. Under this ordinance a member of the Salvation Army was arrested and prosecuted, but the ordinance was held invalid. Cities in that state were empowered, in general terms, to enact such ordinances as would not be repugnant to the constitution and laws of the state, and such as they deemed expedient for the good government of the city, the preservation of peace and good order, and to restrain and prohibit noise, disturbance and disorderly assemblies in any street, house or place in the city. The court held that these provisions did not authorize the passage of the ordinance. "The use of musical instruments on such occasions is not especially objec tionable," said the court. "Songs and shouts, cheers and the waving of banners, have always been considered as demonstrations of approval, and not intending to create disturbances, or provoke breaches of the peace. All these are the usual accompaniments of public demonstrations in every civilized country; and there is nothing in their use, ordinary occasions of this character.

on all

ing of any drum or tambourine, or making any noise with any instrument for any purpose whatever, without written permission from the president of the village," on any street or sidewalk, was held valid. Commonwealth v. Davis,

140 Mass. 485.