Cole v. Kegler

• Decision Date: 07 June 1884
• Citation: 19 N.W. 843,64 Iowa 59
• Parties: COLE v. KEGLER ET AL
• Court: Iowa Supreme Court

19 N.W. 843

64 Iowa 59

COLE v. KEGLER ET AL

Supreme Court of Iowa, Des Moines

June 7, 1884

Appeal from Jackson District Court.

THIS action is against the town of Bellevue, the individuals composing the town council, and others, and the petition states that the defendants unlawfully entered certain premises, and with force and violence pulled down and destroyed a dwelling house, the property of the plaintiff. The defendants justified under a resolution of the town council, declaring the building a nuisance, and ordering its abatement by the destruction of the house. Trial by jury judgment for the defendants, and the plaintiff appeals.

REVERSED.

D. A Wynkoop and L. A. Ellis, for appellant.

S. S Sampson and Fouke & Lyon, for appellees.

OPINION

SEEVERS, J.

I.

The dwelling house in question was situated within the corporate limits of the town of Bellevue, and on the second day of April, 1880, the town council passed the following resolution: "Be it resolved by the town council of the town of Bellevue, that upon investigation we find the old cement house on second street, situated on lot 121, dangerous to the public, and that we therefore declare it a nuisance, and order its removal, and hereby order a notice to be served by the marshal on the owner, Eli Cole, to remove said house within ten days from such notice; and, if said owner shall fail to remove said house in said stated time, the town council will remove it at the expense of said owner, and such expense shall be taxed to said lot No. 121."

The plaintiff had no notice or knowledge of the foregoing proceedings of the council, but, after the passage of the resolution, the notice therein contemplated was served on him. The plaintiff failed to remove the house, and afterwards, on April 27th, 1880, another notice was served on the plaintiff, similar to the foregoing, except that he was requested to remove the building within forty-eight hours. The plaintiff failed to comply with this notice, and there was evidence tending to prove that the house was torn down by some of the defendants, who claimed to be acting under the resolution of the town council. The court instructed the jury as follows:

"4th. Under the law and the conceded facts in this case, the said council had, at least so far as any question can be raised in this suit, the right to pass said resolution, and the individual members of the council passing it cannot be made liable by reason of any acts done under or by virtue of it, and this resolution and authority of the council is also justification to the other defendants, who acted under and by virtue of it, so long as they so acted; but, if they exceeded this authority, and did more than was authorized by it, or more than was essential or necessary to carry it out and abate the nuisance condemned by it, they, or either of them that so did are liable for the damage so done in excess of such authority or necessity, and in this event the measure of damages (no vindictive damages being insisted upon) would be the cash value of the property so destroyed, at the time and place of its destruction, with interest to this time."

It is provided by statute that cities and towns have the "power to prevent injury or annoyance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated." Code § 456. The court seems to have been of the opinion that under this statute the council not only had the power to declare what constituted a nuisance, but that, where it did so determine, such determination was final and conclusive, and justified the destruction of the house, unless the authority conferred by the resolution of the council had been exceeded by the persons acting under it. We are required to determine whether this construction of the statute is correct. Under the instruction given by the court, it is immaterial whether the house in fact was a nuisance. The resolution of the council made it a nuisance, and this ended all inquiry, as the court thought.

The building was adjudged a nuisance without the knowledge of the plaintiff, and he had no opportunity to be heard. No notice to him is required by the statute, and he has no right to appeal or be heard, unless he can have the opportunity in this action of having the question determined whether his house was a nuisance or not. His property has been destroyed, but he is remediless, if the instruction above quoted is in accordance with the law of the land.

The power to abate implies that there is or may be in existence something to be abated. A nuisance must exist before it can be abated. The power conferred, therefore, authorizes cities and towns to abate an existing thing. No express power is given to declare that a nuisance exists, nor do we think that it can or should necessarily be implied. The council may abate all nuisances, but this does not imply that it can determine what constitutes a nuisance as an existing thing for the reason that the nuisance must in fact exist. If it does, then it may be abated. If it does not, the council has no power to declare it, or, in other words, create, and then proceed to abate. We do not think the general assembly intended to confer on cities and towns the power to finally and conclusively determine, without notice or a hearing, and without the right of appeal, that any given thing constitutes a nuisance, unless, probably, in cases of great emergency, so strong as to justify extraordinary measures upon the ground of paramount necessity. The law does not contemplate such an exigency, and therefore does not provide for it. If it did, it would no longer be the undefined law of necessity. NELSON, J., in The People v. The Corporation of...