Emerson v. Babcock, City Marshal

Decision Date03 June 1885
PartiesEMERSON v. BABCOCK, CITY MARSHAL
CourtIowa Supreme Court

Appeal from Ringgold District Court.

THIS is an action in equity, by which the plaintiff seeks to enjoin the defendant, who is marshal of the incorporated town of Kellerton, from removing certain platform scales from one of the streets of said town, in pursuance of an ordinance of the town council. There was a demurrer to the petition, which was sustained. Plaintiff appeals.

AFFIRMED.

R. F Askren, for appellant.

Laughlin & Campbell and Henry & Spence, for appellee.

OPINION

ROTHROCK, J.

It is averred in the petition that "said scales are not and never have been an obstruction to said street in any particular, neither have they been so declared by any court but, on the contrary, plaintiff avers that they have always been a great benefit to the public, and that they were put in said place at the first laying out of said town. Plaintiff states further that said order (the order of removal) was procured through the hatred, ill-will and malice of designing men, for the purpose of harassing and injuring him in his business, and for no other purpose." The demurrer was upon the ground that the facts pleaded do not entitle plaintiff to any relief.

It appears from an exhibit attached to the petition that the town council passed an ordinance requiring the removal "of any platform scales standing on or occupying a portion of the land set apart as a public thoroughfare, known as Decatur street," in said town, and it sufficiently appears from the petition and exhibit that plaintiff's scales are located on Decatur street. Section 4089 of the Code provides that "the obstructing or incumbering by fences, buildings, or otherwise, the public highways, private ways, streets, alleys, commons, landing-places, or burying grounds, are nuisances;" and, by section 456 of the Code, the town council has power to cause any nuisance to be abated.

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, of whatever it may be, from the street, 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...

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21 cases
  • Garage v. City
    • United States
    • Oklahoma Supreme Court
    • May 8, 1928
    ...City, 100 Mo. App. 518, 75 S.W. 383; City of New York v. United States Trust Co., 116 A.D. 349, 101 N.Y.S. 574; Emerson v. Babcock, 66 Iowa 257, 23 N.W. 656, 55 Am. Rep. 273, Norfolk v. Chamberlain, 89 Va. 196, 16 S.E. 730; Ely v. Campbell, 59 How. Prac. (N.Y.) 333." ¶13 We adopt the reason......
  • Sullivan Realty And Improvement Company v. Crockett
    • United States
    • Missouri Court of Appeals
    • June 30, 1911
    ... ...          (1) The ... board of aldermen of the city of Sullivan had no power with ... reference to nuisances in the city and ... Anderson, as marshal, to whom the order was given to abate ... the nuisance, nor Crockett, if ... v. Vandalia, 119 Mo.App ... 406, 94 S.W. 1009 and Emerson v. Babcock, 66 Iowa ... 257, 23 N.W. 656. See, also, Elliott, Roads and ... ...
  • Cowin v. City of Waterloo
    • United States
    • Iowa Supreme Court
    • February 5, 1946
    ... ... 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 ... ...
  • Perry v. Castner
    • United States
    • Iowa Supreme Court
    • June 15, 1904
    ... ... B. P. CASTNER, THE PEOPLE'S SAVINGS BANK, and the CITY" OF ALBIA Supreme Court of Iowa, Des MoinesJune 15, 1904 ...       \xC2" ... 303); Barling v. West, 29 Wis ... 307 (9 Am. Rep. 576); Emerson v. Babcock, 66 Iowa ... 257, 23 N.W. 656 ...          The ... ...
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