delivered the opinion of the court.
We think the learned counsel for appellant have misconceived the controlling- principle of the case at bar, and have argued their client’s case ingeniously from an erroneous view point. Their arguments would be very convincing were they applicable to the cause argued. The questions do not rest in the solution of the proposition that the use of the skids is not per se a nuisance, but whether or not the maintaining of the permanent platforms and the operation of the skids in conjunction therewith, across the public highway, so interferes with the permanent right of the public to the unimpeded and unobstructed use of every part of the public walk in front of appellant’s building and place of business, as to constitute a nuisance in fact. From the photographs in the record, it is plainly seen that the movements of pedestrians are greatly impeded by the barrier platforms and skids there appearing in the street on both the Michigan avenue and Lake street fronts of the business premises of appellant, and that when these skids are in use pedestrians encounter obstructions which materially impede their progress. That such obstructions are nuisances, are not matters resting on judicial interpretation from the facts. They have been so designated by the law-making power of the state. Section 221, div. 5, chap. 38, R. S., which reads that “It is a public nuisance,” among other things, “to obstruct or encroach upon public highways, private ways, streets, alleys, commons,” etc. By par. 75, sec. 62, art. 5, chap. 24 R. S., it is enacted that the city council shall have power to declare what shall be a nuisance and to abate the same; and to impose fines upon parties who may create, continue or suffer nuisances to exist”.
This vests in the city dual powers, both to abate nuisances and to penalize the parties responsible for their existence! The city may proceed to abate and prosecute for fines the one or the other, or both, in its discretion, but it is not required to proceed to penalize as a condition precedent to the right to abate.
It is again insisted that the city has recognized the right to maintain the platforms and skids by long-acquiescence, but it is a sufficient answer to this to say that the city has no legal right or power to consent to the continued existence of a purpresture or to any condition which operates to deny to the public the free and untrammeled use of any part of the public highway. It is conceded by the stipulation of facts that those portions of the streets obstructed by appellant with its platforms and skids are a part'of the public highway. The court say in Smith v. McDowell, 148 Ill. 51, that “the permanent encroachment upon a public highway or street, unauthorized by the legislature, and the creation of a perpresture therein which obstructs the free and uninterrupted passage of the public is, as a matter of law, a public nuisance. The matter of inconvenience to the public, or that sufficient of the street may remain unobstructed to still accommodate the public travel, cannot be considered”.
In Hibbard v. Chicago, 173 Ill. 91, it was sought to enjoin the city from tearing down an awning or shed which had been constructed over a public walk, in virtue of a license given by the city, and the court said: “The mere consent of the city council by resolution or order gives no vested right. * * * The averment that the awning so erected does not injure or obstruct any person does not change the case. The sole question to be determined is, is it an encroachment on the street of the City, and if so, it is a purpresture”.
The case of People v. Harris, 203 Ill. 272, involved the maintaining of a bay window erected by authority of an order of the city council. The court criticised and condemned this order as being without authority of law, and said “that there is no safe field of speculation other than to keep within the limits placed by the books, by saying that the streets in their entirety are public properties exclusively for public use, and that they or any part of them cannot be devoted exclusively to private purposes or private use”. The rule of law controlling the public highway is that they are for their whole width and length held for the exclusive use of the public, and that the municipal authorities can grant no right or easement, not of a public nature, and that the street in its entirety must be maintained for public use, and that all private encroachments thereon, from whatever source they may emanate, are unlawful. Field v. Barling, 149 Ill. 556; Pennsylvania v. Chicago, 181 ibid. 289; Chicago Cold Storage, etc. v. People, 224 ibid. 287.
In discussing the ordinance of the city council, in virtue of which the platform in question was built in the last case cited, the court say: “While the ordinance provides that the sidewalk may be used for public purposes, yet in order to use it those passing over it must go up and down five or six steps at either end. If it is not a nuisance and an obstruction, then the city might authorize private parties to erect and maintain bulkheads in every street of the city of any height. Public streets and sidewalks cannot be lawfully used for any such purpose. We are of the opinion that the platform in question was a nuisance and such an obstruction to public travel as entitled appellees to have it removed”.
We think the foregoing expressions of opinion by the Supreme Court are decisive of the rights of appellant, that the difference between these cases and the case at bar is simply one of degree, and that the obstructions in question here fall under the ban of the law, and that the city of Chicago, through its accredited officials, has the right to abate the nuisance thus created, by removing the purpresture constituting the nuisance. It is the duty of the city to see that the streets remain unobstructed, free and untrammeled for public use, and to remove all obstacles which stand in the way of such free enjoyment by the public.
The decree of the Superior Court dissolving the temporary injunction and dismissing appellant’s bill for want of equity, being right, is affirmed.
Affirmed.