Callahan v. The City of Nevada

• Decision Date: 23 June 1915
• Docket Number: 30157
• Citation: 153 N.W. 188,170 Iowa 719
• Parties: WILLIAM CALLAHAN, Appellee, v. THE CITY OF NEVADA, Appellant
• Court: Iowa Supreme Court

153 N.W. 188

170 Iowa 719

WILLIAM CALLAHAN, Appellee, v. THE CITY OF NEVADA, Appellant

No. 30157

Supreme Court of Iowa, Des Moines

June 23, 1915

Appeal from Story District Court.--HON. R. M. WRIGHT, Judge.

SUIT in equity to enjoin the defendant city from closing an area or open stairway leading to a barber shop in plaintiff's building, which building abuts upon a business street in the city of Nevada. The trial court, upon the issues joined granted the prayer of the petition, and the city appeals.--Reversed and Remanded.

Reversed and Remanded.

J. R Larson and C. G. Lee, for appellant.

E. H Addison, for appellee.

DEEMER, C. J. LADD, GAYNOR and SALINGER, JJ., concur.

OPINION

DEEMER, C. J.

Plaintiff is the owner of a two-story and basement brick building, fronting upon the main business street of the city of Nevada. The lot upon which the building was erected is a corner one, Linn Street being in front of the building, and Second Avenue North being on the south side thereof. The building was erected in the year 1893, and in the basement, a room was fitted up for a barber shop. To this shop, there were two outside entrances; one on Second Avenue North, extending something like two feet and six inches into the street, and the other to the east, extending into Linn Street about three feet. The areaway at the front was eight or ten feet in length, and as the ceiling of the basement was but seventeen inches above the walk, the front areaway was used for light, as well as for an entrance to the building. The front areaway was protected on the sides by iron bars.

In the year 1913, the defendant city passed an ordinance, from which we extract the following:

"Section 1. Encroachment. No person, firm, or corporation shall create, construct or maintain upon or under the surface on any street, avenue or alley in this city, any chimneys, stairways, platforms, steps, areas, railings, grates, vaults, coal or boiler rooms, or any other encroachments of a private or fixed character, unless written permit is granted to the owner of said property, by the City Council to maintain or construct the same.

"Section 2. Permit. No permission shall be granted or issued for any of the encroachments named in section one hereof, until plans for same complete in detail, shall have been filed with the City Council, and approved by said council and the City Engineer. All permits shall be in writing signed by the City Clerk and the City Engineer upon order of the City Council, said permit shall contain the name of the person, firm or corporation procuring the same, the date issued, the number, size and location of such encroachment as permitted, and also an agreement signed by such person, firm or corporation procuring the same, to hold the city safe from any and all damage which may be caused or occasioned by the construction of said encroachment.

"Section 5. Inspection. The committee on streets, avenues, or alleys is authorized to inspect at any time, the different encroachments mentioned in this ordinance, and to place in any area, vault or boiler room, or coal room, any pipes or conduits for carrying electric wires, gas or water, or to alter, extend, or repair such pipes or conduits; but such pipes or conduits shall at all times be placed so as to interfere as little as possible with the use of such areas or vaults, and the committee on streets, avenues and alleys is also authorized to enter said areas, coal or boiler rooms or vaults for any and all purposes connected with the legitimate use of such streets, avenues, or alleys.

"Section 6. Revocation of Permit. Should any encroachment authorized as above set forth, at any time conflict with the right of travel which the general public has in the streets, then and in that case the City Council may revoke any permit granted by the City Engineer and signed by the City Clerk and order the removal of said encroachment."

Plaintiff failed to prove that these areaways were constructed with the express consent of defendant's city council, but does claim that it never made any objection thereto or asked him to take them out; but in November, of the year 1913, the city closed the areaway in front of the building and cemented it over, even to the extent of going some four inches over the lot line. Before closing the opening, the city told plaintiff that he might put in an illuminated or glass side-walk where the areaway had been, to give light into the basement, but this the plaintiff neglected and refused to do. Appellee's counsel frankly concedes that, unless such an areaway as the one here involved is such a fair and reasonable use of the street as the law will justify, and permission once given or implied is irrevocable, his client has no case. We shall start with the assumption, although the fact is not expressly shown, that the fee title to the streets in the defendant city is in the municipality; for that is the general rule in this state, the exception being in certain cities organized at an early day under special charters. This title carries with it an obligation to keep the streets in repair, free from obstructions and nuisances, and in a reasonably safe condition for public travel. As a rule, the occupant of an adjoining building has no absolute right to use the street for areaways to afford either access or light; and the doctrine of ancient lights or the right to light or air does not obtain in this state. Cities, in the exercise of their proper functions, may grant a permit for the use of their streets for ingress or egress to floors below the level of the street; but such a permit is revocable at any time in the sound discretion of the proper governing body. Dubuque v. Maloney, 9 Iowa 450; Davis et al. v. Clinton, 50 Iowa 585; Emerson v. Babcock, 66 Iowa 257, 23 N.W. 656; Lacy v. Oskaloosa, 143 Iowa 704, 121 N.W. 542; Bennett v. Mount Vernon, 124 Iowa 537, 100 N.W. 349; Kemp v. City of Des Moines, 125 Iowa 640, 101 N.W. 474; Perry v. Castner, 124 Iowa 386, 100 N.W. 84.

In the Emerson Case, supra, it is said:

"The fee title of the streets is in the incorporated town, and no private person has any legal right to erect any structure therein for the purpose of carrying on his private business; and if, having done so, he is required to remove his building or structure or whatever it may be from the street, he has no cause for complaint. He is deprived of no right. If the plaintiff was permitted to maintain his scales in the street for a time, the privilege...