Minutes 02/21/1927 - Laserfiche WebLink

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Februsry 21, cases deciding the principle. See also Pence v. Bryant 46 S.E. 2?5 (West Virginia of Virginia case), (23 L. R. A.' 3~ Smith v. McDowell), McQuillin in his book on Municipal 0orporations, Section 1~03 states three rule~ in regard to the purpose a~ud motive for wac~ting a street and the powers cf the cour~ to investl- g~te the motives or interfere with the discretion of the municipal authorities in ~egard there- to. The first rule is that a street or alley can no~ be v~cated for a private use; that is for the purpose of devoting it to the exclusive use and benefit of a private person or cor- poration, but it may only be vacated to promote the public welfare. The second rule is that the motives of the municipal authorities in v~oatin$ a par- ticu±ar street or alley can not be 'inquired into. But while the courts can not inquire into the motives of the council in vacating a street, they may consider the purpose aocomplish~ed b$ the Macating ordinan?e, and if the purpose is iilegal tn~ vacation may be set aside. The third rule is ~h~t the discretion of the municipal authorities in vacatin~ street or alleywill not be controlled or interferedwith by. the courts unless there is a plain case of abuse or there has been fraud or collusion. These three rules do noz always harmonize, .however, and there is considerable con- flict in the opinions as to when the ~acation of a street ca~ be s~id to be for ~ private pur- pose so as to authorize the courts to interfere. It seems that the mere fact that the l~nd reverts to the abutting l~nd owners for their private use does not show that-the vacation was for a private as distinguished from a public purpose. Nor the mere f~ct that the v~cation w~s granted on the petition of a private person does no~ invalidate the proceedings. As to what are public as disting~ished from private purposes, ~n eminent legal author has said, 'The abolition of grade c~osslngs, the construction of railroad depots and terminals, and the re-arrangement of streets to secure a more regular a~d harmonious system, are public purposes for which the power of vacation may be properly exercised. So where vacation is for public or ~uasi public buildings and grounds' Lewis Eminent Dom~in 3rd Edition section page The t~e rule seems to be that a municipality cmn not vacate a street or ~ part thereof for the sole purpose of benefiting an abutting owner, and that the power to ~acate streets c~n not be exercised in anarbitrs~ry m~er, without regard to the interest and con- venience of public or individual rights; but that the munioipa~lity may vacate a street on the petition of an abuttsr for his benefit where the vacation is also for the benefit of the public ~t large, i.e., where the use to which the vacated part of~he street is to be put is of more benefit to the community tha~u the retention of ~aoh land as a way for the street. The question with =lmzabetn place is whether the use put after v~cation is of moro benefit to the comn~Anity tha~ its is it o~u be vacated; otherwise it can not. to which the street is to be retention as a street? If it It seems to me that the questions which would help you to solve the matter are the followAng: is the closing of the street of prime importance to the Gas Company? I think not as it has oth&r locations for its ~ank with probably an additio~l expenditure. Is the street of any use at present, or will it be at some time in the future? And will it be of more benefit to have the lots facing on Washington Street than on Elizabeth Place? I de not beliese the street is'of any use at present,.a~ud whether it will ever be of any use in the future is difficult to say. It depends upon whether it will ever be b~ilt upon and whether the gas works will ever be removed. The gas works w~ald be obSectionable to any build- ings on the street, but on the other hand if the gas works should ever be removed and the street c~rried through to Green Street it .would rmn ih~o Emmet Street which would be highly desirable. If the lots should be m~de to face Washington S~eet there would be fewer lots with considerable depth to each lot. Will ~he closing of the street inconvenience the public, or harm s~uy citizens? i do not believe it will inconvnienoe the public as it is not used as a thoroughfare ~nd never will be used unless houses ~e ~ilt to face~cn it, or it is opened through to Green street. which will not be done unless the gas works are moved. The citizens living in the neighborhood will be harmed by the mere closi~ of the street by shorting Elizabeth place to one block long, and by narrowing their view. My conclusions are that as the closing of the street is ~ot of prime necessity tO the Gas Oompany, and people~h~ve bomght lots en the Aetna Realty Company's plat a~d built ~xpensive houses thereon with the view that the street will remainbpen, it sho~ztd not be closed without their consent. If the people in the neighborhood consent to ~csing the street it would be well to obtain from the Gas 0ompany an outlet from that locality to Green Street. ~ours very ~mu~ly, R. 0. BARCLAY, City Attorney." Mr. White mo~ved that the privilege of the fioor be granted to any one present who might desire ~o be hear~ on this subject. The motion ??s adopted~ spoke and Capt. Jno. W. H~pper, attorney for ceftin citizens ~nd property owne~s,/presented the following petition requesting that ~he petition of the Aetna Realty Company for permi~sion to. close the west end cT Elizabeth place be not granted: Oity~Manmger and The Oounoil, "Portsmouth, Va., February 16, 192?.