Without express legislative authority, a municipal corporation may not grant to any person the right to erect or maintain a structure or obstruction in a public street.
(Civil Code 1895, § 745; Civil Code 1910, § 894; Code 1933, § 69-304.)
Law reviews.- For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963).
JUDICIAL DECISIONSANALYSIS
General application of this section has been to deny a city's right to permit obstructions that would constitute a nuisance and impede travel. City Council v. Shields, 108 Ga. App. 790, 134 S.E.2d 481 (1963).
Delegability of power to abolish, vacate or close street.
- Legislature may delegate to a municipal corporation the power to abolish, vacate, or close a street in a municipality. When a street is abolished or closed by a municipality by virtue of such delegated power, the interest of the public therein ceases, and the owners of the fee, who are presumptively the abutting landowners, become entitled to use the property without regard to the former servitude imposed upon the land. Harbuck v. Richland Box Co., 207 Ga. 537, 63 S.E.2d 333 (1951).
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. City Council v. Reynolds, 122 Ga. 754, 50 S.E. 998 (1905).
Obstruction defined.
- Any permanent structure in a road which materially interferes with travel is a nuisance per se, and any obstruction permanent in nature or continuously maintained which interferes with the free use of the road by the public is a public nuisance, and it is immaterial that space may be left on either side of the obstruction for the passage of the public. The public has the right to the unobstructed use of the whole road as the road was acquired by the county or city. Harbuck v. Richland Box Co., 204 Ga. 352, 49 S.E.2d 883 (1948).
Use of streets not absolute.
- Use of streets and highways is not absolute and unrestricted, but is subject to reasonable regulation. Schlesinger v. City of Atlanta, 161 Ga. 148, 129 S.E. 861 (1925).
Limitations on right of public use.
- Right of the public to the free and unobstructed use of a street or public way is subject to reasonable and necessary limitations. The right to temporarily obstruct the street springs from the necessities of the case, and such right is necessarily limited by the necessity existing. Those who exercise the right must do so in such manner as will create the least possible inconvenience to others, and the impediment must be removed within a reasonable time. Harbuck v. Richland Box Co., 204 Ga. 352, 49 S.E.2d 883 (1948).
Section not basis for municipal liability.
- In the planning and the construction of a safety zone on a city street, the city was engaged in a governmental function and could not be held liable for any error in judgment in such planning. Beall v. City of Atlanta, 72 Ga. App. 760, 34 S.E.2d 918 (1945).
This section is not primarily a safety measure, and is not a basis for liability for injury caused indirectly by a condition in or adjacent to the traveled portion of the street. City Council v. Shields, 108 Ga. App. 790, 134 S.E.2d 481 (1963).
Cited in Neal & Son v. Burch, 173 Ga. 840, 162 S.E. 135 (1931); City of Moultrie v. Colquitt County Rural Elec. Co., 211 Ga. 842, 89 S.E.2d 657 (1955); Southern Bell Tel. & Tel. Co. v. Martin, 229 Ga. 881, 194 S.E.2d 910 (1972); Georgia Power Co. v. Zimmerman, 133 Ga. App. 786, 213 S.E.2d 12 (1975).
Specific Obstructions
Permanent structures.
- Municipal corporation has no power, in the absence of express legislative authority, to authorize the erection of permanent structures in a public street, which interfere with the free use of such street by the public. Savannah & W.R.R. v. Woodruff, 86 Ga. 94, 13 S.E. 156 (1890); Laing v. Mayor of Americus, 86 Ga. 756, 13 S.E. 107 (1891); City Council v. Jackson, 20 Ga. App. 710, 93 S.E. 304 (1917); Mayor of Savannah v. Markowitz, 155 Ga. 870, 118 S.E. 558 (1923).
Permissibility of noninterfering structures.
- Permanent structures which do not interfere with travel and which are erected for public purposes, such as telegraph and telephone poles, and the like, are permissible. But no permanent structure of any character which interferes in the slightest degree with the right of travel upon the street is ever permissible if such structure is erected for purely private purposes. City Council v. Reynolds, 122 Ga. 754, 50 S.E. 998 (1905).
Temporary obstructions.
- Temporary obstructions in a street are permissible under certain circumstances, even if the obstruction is for the benefit or convenience of an individual. The general rule is that if the purpose for which the obstruction is created is lawful, and the obstruction exists only for such a time as is reasonably necessary to accomplish the purpose which brings about the necessity for the obstruction, such an obstruction would not be a public nuisance. City Council v. Reynolds, 122 Ga. 754, 50 S.E. 998 (1905).
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 the destruction was placed in the street in furtherance of a lawful and legitimate purpose, and has not been continued any longer than was reasonably necessary for the accomplishment of this purpose. City Council v. Reynolds, 122 Ga. 754, 50 S.E. 998 (1905).
Expenses incurred in erecting obstruction no defense.
- It is no reason for not removing the obstructions from a street that the plaintiff has incurred expense in erecting and maintaining the obstruction, and no lapse of time will render the license irrevocable. Laing v. Mayor of Americus, 86 Ga. 756, 13 S.E. 107 (1891); Mayor of Savannah v. Markowitz, 155 Ga. 870, 118 S.E. 558 (1923).
Obstructions "for purely private gain" are not permissible.
- Streets are primarily intended for the use of travelers, and any permanent structure in a street which materially interferes with travel thereon is a public nuisance. Permanent structures which do not interfere with travel, and which are erected for public purposes, such as telegraph and telephone poles, and the like, are permissible. City Council v. Reynolds, 122 Ga. 754, 50 S.E. 998 (1905); Butler v. City of Atlanta, 47 Ga. App. 341, 170 S.E. 539 (1933).
Fair in public street a nuisance. City Council v. Reynolds, 122 Ga. 754, 50 S.E. 998 (1905).
Constitutionality of restriction of buses.
- Use of streets by common carriers for the purpose of gain is extraordinary and may be conditioned or prohibited as the legislature or municipality deems proper. Hence, if the state or city determines that the use of streets by buses should be restricted or prohibited there is nothing in the Constitution of the United States or this state which prohibits such action. Schlesinger v. City of Atlanta, 161 Ga. 148, 129 S.E. 861 (1925).
Use by streetcars.
- Legislature has expressly given to cities the power to permit the use of streets for the operation of streetcars, and has conferred upon the city commissioners the authority to determine the location of trolley poles by provisions of former Code 1933, § 94-301 (see now O.C.G.A. § 46-8-100(5)). Townsend v. Georgia Power Co., 44 Ga. App. 132, 160 S.E. 712 (1931).
Medians.
- When a median does not interfere with the plaintiffs' ingress and egress to plaintiff's properties but requires mere circuity of travel only, abutting landowners have no cause of action as this section does not apply. Hadwin v. Mayor of Savannah, 221 Ga. 148, 143 S.E.2d 734 (1965).
Construction of "safety islands".
- Municipality and street railroad companies operating within its limits have the power, without being guilty of maintaining a nuisance or committing thereby an act of negligence per se, to authorize the construction and maintenance of, and to construct and maintain under such municipal authority, what are termed "safety islands" or "safety zones" in streets at the side of a streetcar line, for the use and safety of the public from automobile and other traffic when entering and departing from streetcars. Butler v. City of Atlanta, 47 Ga. App. 341, 170 S.E. 539 (1933).
Municipal ordinance which was an attempt to vacate 20 feet of a public street for the benefit of a private corporation is in excess of statutory authority. Harbuck v. Richland Box Co., 204 Ga. 352, 49 S.E.2d 883 (1948).
Constructing bridges.
- City may in the proper exercise of the city's discretion, and as a movement in the direction of public improvement, build a bridge in one of the city's streets, and, incidentally, close the street during the reasonable duration of the work. In like manner, the municipal authorities may authorize a railroad company to build the bridge for the benefit of the city, giving the company power to close the street for a reasonable time while the work is being done. Adair v. City of Atlanta, 124 Ga. 288, 52 S.E. 739 (1905).
City's right to obstruct street.
- When it is not prohibited by law, a city may legally erect and maintain an obstruction in one of the city's streets, provided the obstruction is not dangerous, and does not constitute an unreasonable interference with the lawful use of the street. South Ga. Power Co. v. Smith, 42 Ga. App. 100, 155 S.E. 80 (1930).
RESEARCH REFERENCES
C.J.S.
- 64 C.J.S., Municipal Corporations, §§ 1884, 1885.
ALR.
- Power of municipality to permit permanent loading platforms in street, 11 A.L.R. 442.
Power to close or obstruct street temporarily to permit its use for purposes of sport or entertainment, 34 A.L.R. 270.
Validity, construction, and application of ordinances prohibiting or regulating "curb service", 111 A.L.R. 131.
Municipality's power to permit private owner to construct building or structure overhanging or crossing the air space above public street or sidewalk, 76 A.L.R.2d 896.
Authorization, prohibition, or regulation by municipality of the sale of merchandise on streets or highways, or their use for such purpose, 14 A.L.R.3d 896.