Cowin v. City of Waterloo, 46785.

CourtUnited States State Supreme Court of Iowa
Citation21 N.W.2d 705,237 Iowa 202
Docket Number46785.
PartiesCOWIN v. CITY OF WATERLOO (LaPOLE, Intervener).
Decision Date05 February 1946

21 N.W.2d 705

237 Iowa 202


No. 46785.

Supreme Court of Iowa

February 5, 1946

Appeal from District Court, Blackhawk County; William T. Evans, Judge.

[237 Iowa 203] W. L. Beecher, of Waterloo, for appellant.

Ralph W. Travis, of Waterloo, for intervener and appellant.

Harris & Van Metre, of Waterloo, for appellee.

MILLER, Justice.

Plaintiff's petition asserted: plaintiff is a taxpayer and the owner of real estate with a frontage of 80 feet on Sycamore Street at the intersection of that street and East Fourth Street in Waterloo, Iowa; there is erected and maintained upon the sidewalk, adjacent to plaintiff's property, [21 N.W.2d 706] a news stand, 9 ft. 4 in. by 4 ft. 6 in., approximately 7 ft. high, operated by Hubert LaPole (intervener herein); it is of solid construction, unsightly, interferes with pedestrians on the sidewalk and with the parking of automobiles at the curb; it constitutes nuisance and obstruction under Section 12396, Code 1939; on June 10, 1944, plaintiff gave defendant city notice thereof and demanded its abatement; plaintiff has suffered special damages (itemized) to his property by reason thereof; under Section 5945, Code 1939, it is the duty of defendant city to keep its streets free from nuisances; defendant city has filed to perform such duty; plaintiff is personally interested in having said sidewalk free from nuisances and has no plain, speedy and adequate remedy at law. The prayer, s mended, was for writ of mandamus, commanding defendant city to remove said news stand from the sidewalk, and for general equitable relief.

Defendant city moved to dismiss the petition. The motion was overruled. The city then filed an answer which admitted plaintiff's ownership of the real estate and the existence of the news stand, but denied that it is unsightly, interferes with pedestrians on the street or constitutes a nuisance in fact or in law. The prayer was that the petition be dismissed.

[237 Iowa 204] Hubert LaPole, the proprietor of the news stand, was permitted to intervene. He asserted: he owns and operates the news stand at East 4th and Sycamore Streets and has owned and operated it for 25 years; recently from year to year, he has been granted a license to do so by the city under Section 4 of City Ordinance No. 1540 (duly set out) for which an annual fee of $50 is charged; the purpose of plaintiff's action herein is to revoke and cancel such license and to prohibit the operation of said news stand; intervener has a personal interest in this action; the news stand in no way constitutes a nuisance and is not unsightly. The prayer was that the petition of plaintiff be dismissed.

Plaintiff's answer to the petition of intervention admitted most of the allegations thereof but asserted further that the length of time intervener operated his news stand was immaterial and that Section 4 of Ordinance 1540, relied upon by intervener, is unconstitutional in that the city has no right to grant an individual the exclusive right to erect or maintain buildings upon any portion of the streets for private gain and intervener's license is invalid because the city has no authority to grant any person exclusive use of any portion of the public streets for private gain. The prayer, as amended, was as in the original petition and, in addition thereto, that intervener be enjoined from maintaining the news stand at any location upon the sidewalk adjacent to plaintiff's property and for the removal thereof.

The trial resulted in a decree wherein the court found the following facts: all the material allegations of plaintiff's petition are true; plaintiff is a taxpayer and the owner of realty at East 4th and Sycamore Streets, Waterloo, Iowa; the news stand of intervener is 9 ft. long, 6 ft. 3 in. high, 4 ft. wide; the sidewalk is 14 ft. 11 in. wide; the stand is along the curb leaving 9 ft. 1 in. between the stand and plaintiff's building; the stand obstructs more than one-third of the sidewalk, prevents occupants of automobiles parked adjacent thereto alighting at the curb, requires them to alight from the left side of said automobiles exposing them to danger of collision with vehicular traffic; the [237 Iowa 205] stand obscures the view of the display window in plaintiff's building, impairing the advertising value thereof; plaintiff suffers special damages from the stand; intervener owns and operates the stand, has operated it for 25 years but it has been enlarged; the city ordinance requires an annual fee of $50 which intervener has paid; the city had proper notice of and demand to abate the nuisance but failed to do so.

The court's conclusions of law were as follows: it is the duty of the city to keep its streets open, free from nuisances, Section 5945, Code 1939; the news stand is a continuing nuisance under Section 12396, Code 1939; no private person has a right to obstruct a street for private business and the city has no legal right to license or lease a part of the streets to a person for his private business venture (Emerson v. Babcock, 66 Iowa 257, 23 N.W. 656, 55 Am. Rep. 273); any such license is void; intervener has no vested right to maintain a nuisance nor can such right be acquired by lapse of time, usage or prescription (City of Waterloo v. Waterloo, C. F. & N. Ry. Co., 149 Iowa 129, 125 N.W. 819); plaintiff is entitled to a writ of mandamus and full equitable relief.

Pursuant to such findings of fact and conclusions of law, the court entered a decree adjudging that the city was under a [21 N.W.2d 707] legal duty to remove the news stand from the sidewalk and its refusal so to do was illegal and wrongful; a writ of mandamus was ordered commanding the city to remove the news stand; the city was enjoined from licensing a news stand on Sycamore Street; intervener was enjoined from operating a news stand on the sidewalk thereof and judgment was entered against the city and the intervener for costs. The city and the intervener appeal to this court.

I. In the case of Emerson v. Babcock, 66 Iowa 257, 259, 23 N.W. 656, 657, 55 Am.Rep. 273, relied upon by the trial court as aforesaid, this court stated: '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, [237 Iowa 206] he has no cause of complaint. He is deprived of no right. If the plaintiff was permitted to maintain his scales in the street for a time, the privilege must be regarded as a mere license which may be terminated at any time, and it is immaterial whether the erection in the street amounts to a nuisance. It is the duty of the town authorities to keep the streets clear and unobstructed, and no person has the right to take and hold possession of any part of the streets for any private purpose.'

The foregoing pronouncement has been cited with approval repeatedly by this court. Philbrick v. Town of University Place, 88 Iowa 354, 357, 55 N.W. 345; Perry v. Castner, 124 Iowa 386, 390, 100 N.W. 84, 66 L.R.A. 160, 2 Ann.Cas. 363; Lacy v. City of Oskaloosa, 143 Iowa 704, 709, 121 N.W. 542, 31 L.R.A., N.S., 853; Callahan v. City of Nevada, 170 Iowa 719, 722, 153 N.W. 188, L.R.A.1916B, 927; Incorporated Town of Polk City v. Gemricher, 185 Iowa 278, 279, 170 N.W. 378; Mettler v. City of Ottumwa, 197 Iowa 187, 189, 196 N.W. 1000; Edaburn v. City of Creston, 199 Iowa 669, 671, 202 N.W. 580. Other cases to the same effect include; Bennett v. Town of Mt. Vernon, 124 Iowa 537, 539, 100 N.W. 349; Pugh v. City of Des Moines, 176 Iowa 593, 606, 156 N.W. 892, L.R.A.1917F, 345; Incorporated Town of Lamoni v. Smith, 217 Iowa 264, 251 N.W. 706; Pederson v. Town of Radcliffe, 226 Iowa 166, 284 N.W. 145.

In the case of Perry v. Castner, supra, this court stated, at pages 389 and 390 of 124 Iowa, at page 85 of 100 N.W., 66 L.R.A. 160, 2 Ann.Cas. 363, as follows: 'The temporary use of streets for the deposit of building material, the conveyance of goods by tradesmen, and in other ways, need only be adverted to. The necessity of such encroachments is sufficient for their justification. See note to Callanan v. Gilman, 1 Am.St.Rep. 831; Raymond v. Keseberg [84 Wis. 302], 54 N.W. 612, 19 L.R.A. 643. Even these are not to be unreasonably prolonged. But obstructions which are permanent, and interfere with the free and unimpeded use of the street, although enough space may be left for the passage of travelers, are nuisances, which may [237 Iowa 207] be abated. Thus a show case in front of a store, a bay window 16 feet above the sidewalk, and projecting over it 3 1/2 feet, a fruit stand encroaching on the sidewalk, a show board extending 11 1/2 inches over the sidewalk in front of a shop, a log in the street at the threshold of a gate, scales for private use in the street, have all been declared nuisances. See above note; Reimer's Appeal, 100 Pa. 182, 49 Am.Rep. 373; Costello v. State, 108 Ala. 45, 18 So. 820, 35 L.R.A. 303; Barling v. West, 29 Wis. 307, 9 Am.Rep. 576; Emerson v. Babcock, 66 Iowa 257, 23 N.W. 656, 55 Am.Rep. 273.'

In Bennett v. Town of Mt. Vernon, supra, this court stated, at pages 539 and 540 of 124 Iowa, at page 350 of 100 N.W., as follows: 'Conceding arguendo, however, that the town gave him permission, or that it impliedly consented to it by standing by and seeing the work done, we have to inquire what rights it gave him or his grantee in the premises. There is no statute in this state authorizing towns to grant to individuals the right to the use of their streets for private purposes. These municipalities hold the streets in trust for the public, and cannot put them to any use inconsistent with street purposes. They have no implied power to grant privileges to use the streets for private purposes. The use which...

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