City of Waterloo v. Union Mill Co.

• Decision Date: 07 October 1887
• Citation: 34 N.W. 197,72 Iowa 437
• Parties: CITY OF WATERLOO v. UNION MILL CO.
• Court: Iowa Supreme Court

72 Iowa 437

34 N.W. 197

CITY OF WATERLOO

v.UNION MILL CO.

Supreme Court of Iowa.

October 7, 1887.

Appeal from circuit court, Blackhawk county.

Action in chancery to abate a nuisance caused by the construction of a millrace in a street of the plaintiff. There was a decree for plaintiff, granting the relief prayed for. Defendant appeals.Boies, Husted & Boies, for appellant.

Mullan & Hoff, for appellee.

BECK, J.

1. The defendant owns and operates a mill in the city of Waterloo. The race supplying the water used as motor-power for the mill was constructed about 20 years ago, and occupies a part of Cedar street. At the westerly end of the street the race occupies nearly its whole width; but, running at an acute angle with the line of the street, the race leaves it about 100 feet from its westerly end, thus occupying a part of the street in an angular form. The race being uncovered at the place, the street there cannot be used by the public. The plaintiff, in its petition, alleges that the race, so far as it occupies Cedar street, is a nuisance, and prays that defendant be, by a proper decree, required to abate it, either by removing the race, or by covering it in such manner that it shall not interfere with the use of the street. The defendant, as defenses, pleads (1) that the action is barred by the statute of limitations; (2) that Cedar street as platted was never accepted, occupied, used, or improved, and it therefore never became a public street; and (3) that, after its dedication by platting, defendant's grantor entered upon and constructed the race under a color of title and right, and made other valuable improvements,--all of which was well known to defendant and the public, and was without any objection or claim against the right of defendant's grantor so to do. The decree requires the defendant to construct and maintain a bridge over the race in Cedar street, and to remove all obstructions therefrom, so that it may be fully opened for the use of the public.

2. In our opinion, the right of the plaintiff and of the public to the use and occupancy of the street is not barred by the statute of limitations. The city is invested by the legislature with governmental powers, and holds the fee of the street, or an easement thereon, in trust for the public. Ogg v. City of Lansing, 35 Iowa, 495;Calwell v. City of Boone, 51 Iowa, 687, 2 N. W. Rep. 614;City of Clinton v. Railroad Co., 24 Iowa, 455. The city is but an instrument for the exercise of the authority of the state, and its municipal powers in establishing and maintaining a street are exercised in the discharge of governmental functions. The statute of limitations, therefore, will not run to defeat the exercise of its governmental authority. In cases wherein arise questions involving property or contracts which do not pertain to the exercise of their authority, the statute will run. Davies v. Huebner, 45 Iowa, 574;City of Burlington v. Railroad Co., 41 Iowa, 134;City of Pella v. Scholte, 24 Iowa, 283; Dill. Mun. Corp. § 675, and cases cited in notes; City of Alton v. Transportation Co., 12 Ill. 38;Supervisors v. City of Lincoln, 81 Ill. 156;County of Piatt v. Goodell, 97 Ill. 84;City of Vicksburg v. Marshall, 59 Miss. 563;Brooks v. Riding, 46 Ind. 15;Sims v. City of Frankfort, 79 Ind. 446.

3. It is insisted by defendant's counsel that the street in question, after its dedication by the proprietors of the land, was never accepted by the city or the public, and therefore never became a street in contemplation of the law. Acceptance of a street after dedication is necessary, in order to establish the right of the public thereto. It may be shown by public use. Manderschid v. City of Dubuque, 29 Iowa, 73;Bell v. City of Burlington, 68 Iowa, 296, 27 N. W. Rep. 245. The defendant maintains that the evidence fails to show acceptance of the street involved in this suit. We think it is shown. From the day of its dedication until its use was interrupted by the construction of the race, it was used as the public wants...