Varney & Green v. Williams

SLOSS, J.

The plaintiff, a corporation engaged in the business of posting bills, painting advertising signs, and conducting a general advertising business, brought this action to enjoin the municipal authorities of the town of East San Jose from tearing down certain bill-boards maintained by plaintiff in said town. The defendants based their contemplated action upon the provisions of an ordinance passed by the town trustees. Section 1 of this ordinance provides: “That every per

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son who, within the corporate limits of the town of East San Jose, shall erect or maintain or cause to be erected or maintained, any bill-board, sign board or other structure for the purpose of painting or otherwise delineating or picturing or displaying thereon or thereby any advertisement of any goods, wares or merchandise whatsoever shall be guilty of a misdemeanor and shall be punishable by a fine not exceeding two hundred dollars, or by imprisonment not exceeding two months or by both such fine and imprisonment.” Section 2 makes it the duty of the marshal in the event of the erection or maintenance of a bill-board in violation of section 1, to remove such board, after notice to the offender. By section

3,

the preceding sections are not to apply to any person having a fixed place of business in the town of East San Jose, “who shall erect or maintain any advertisement sign on the premises where his said business is carried on . . . provided that such advertisement sign shall advertise only goods, wares and merchandise for sale by him at his said place of business.”

The court finds that plaintiff is maintaining, within the corporate limits of East San Jose, three bill-boards for advertising. These boards were constructed and are maintained with the consent of the owners of the properly on which they are located; they are substantially constructed, and not liable to be blown down except in case of extraordinarily high winds. It is found that each of said boards is “offensive to the senses and an obstruction to the free use of property,” and that “since their construction, and during their maintenance, they have been, and they are still, a public nuisance.” Judgment was entered in favor of defendants. Plaintiff appeals from the judgment and from an order denying its motion for a new trial.