Gates v. City Council of Bloomfield, 47893

Citation50 N.W.2d 578,243 Iowa 1
Decision Date13 December 1951
Docket NumberNo. 47893,47893
PartiesGATES v. CITY COUNCIL OF BLOOMFIELD.
CourtUnited States State Supreme Court of Iowa

D. W. Harris, W. R. Fimmen, of Bloomfield, for appellant.

Buell McCash, of Bloomfield, Wilbur R. Dull, of Ottumwa, for appellee.

MULRONEY, Justice.

Plaintiff brought certiorari action against the city council of Bloomfield to test the validity of Ordinance 136. Plaintiff alleged he was the owner of a business building in Bloomfield and the ordinance adopted by the city council made a bus zone for large buses in the street fronting his property where the buses could load and unload passengers, baggage and freight. He alleges damages in that his property was thereby rendered less desirable as business property and his right of ingress and egress to his property was substantially abridged. The petition alleges respondents, members of the council acted in excess of their jurisdiction and illegally, arbitrarily and unreasonably in adopting the ordinance and that the same constitutes a taking of his property without compensation and that the establishment of the bus zone in front of his premises was 'for the sole purpose and benefit of promoting the business of the adjoining owner to the south'--a bus station.

The city council appeared and filed answer in response to the preliminary writ and, after hearing testimony, the trial court quashed the writ and plaintiff appeals.

Ordinance 136 is entitled: 'An Ordinance Establishing Bus-Stop Zone; Prohibiting Parking of Vehicles Therein; and Providing Penalties for Violation thereof.' In the first section it describes the area which is 'established and designated as a bus-stop zone and loading area.' Plaintiff's lot and building on the east side of Washington Street has 43 feet frontage on that street and the bus station, immediately south of plaintiff's building has 12 feet frontage on Washington Street. The area described in the ordinance is a strip 10 feet wide, outside the curb and 53 feet long, which includes all of plaintiff's frontage and 10 feet of the bus station's frontage--the south 2 feet of the bus station's frontage is in the curve of a filling station driveway immediately south of the bus station.

Sections 2 and 3 of the ordinance provide as follows: 'It shall be unlawful for the operator of any vehicle, except operators of common-carrier buses engaged in interstate and/or intra-state business, to park such vehicle in said bus-stop zone and loading area, except in order to take on or discharge passengers or freight, and then only for such length of time as is necessary for such purposes.

'That the north and south limits of said bus-stop zone and loading area shall be marked by signs bearing the inscription 'No Parking--Bus-Stop.'

The remaining sections provide for fine or imprisonment for violators, the repeal of ordinances in conflict, and publication. It appears to be conceded that the formal requisites for due adoption of the ordinance were observed.

Section 2 is not very clear and there is a controversy in the briefs as to whether the ordinance permitted any motor vehicle to stop in the zone to load or unload passengers and freight or whether it prohibits the stopping of all vehicles within the area except buses. The trial court in his findings and conclusions stated that 'counsel agree in argument and the pleadings filed by both sides agree' that the ordinance permitted any vehicle to stop in the zone to load or unload passengers or freight. Plaintiff's petition makes no such concession and he states here he made no such concession in the argument in the trial court. However we need not decide this controversy. We will accept the meaning urged by respondents that it permitted any vehicle to stop in the zone to load or unload passengers or freight. Such a conceded meaning would be of small value to plaintiff and most of the traveling public but of great value to the interurban bus lines. Plaintiff and his tenants would have but few occasions to stop in front of plaintiff's property 'to take on or discharge passengers and/or freight.' Relatively few of the traveling public, other than the interurban buses, would have occasion to stop for the same purpose. Since the only reason a bus would stop would be 'to take on or discharge passengers and/or freight' and, under any interpretation, no one could enter the zone for any other purpose, it is abundantly clear that the ordinance was designed to give and did give the bus companies exclusive or almost exclusive rights to stop their buses on the street in front of plaintiff's property to load and unload passengers and freight. The Missouri Transit makes six and the Arrow seven regular scheduled stops in the area each day and sometimes a Greyhound bus stops. The buses stopped at no other place in Bloomfield. The ordinance was passed within a few days after the bus station was moved to the location just south of plaintiff's property. Shortly after the ordinance was passed the city tore up a strip of old cement covering a part of what might be called the parking lying between the sidewalk in front of plaintiff's property and the paved highway and covered the entire parking, about 12 feet in width, with concrete with the west edge of this concrete flush with the pavement. One of the councilmen said they put in the concrete on the old parking because 'we wanted it to be safe for walking out to the bus.' Another said: 'This concrete slab that we put in there was put there with the intention of being for the buses.' The mayor said the parking was paved 'for the purpose of providing a bus stop there, a bus stop and unloading job * * * it was done to prevent injury to passengers who might be getting on and off the buses.'

The record warrants the trial court's conclusion that the bus company's use of the zone damaged plaintiff. At the time the ordinance was passed there was a restaurant, hotel lobby (12 sleeping rooms on the second floor) and a barber shop in plaintiff's building, with main entrances from the sidewalk on Washington Street. A taxi operator had his office in the hotel lobby. The trial court, in his written findings of fact, found: 'The Missouri Transit Company regularly stops six buses there daily, and the Arrow Coach Company seven. They park at an angle, using the entire twenty-two foot strip, and occasionally they also overhang the side-walk with the corner of the bus and open door. Some of these buses are eight feet four inches wide, more than thirty feet long, and carry from thirty to thirty-five passengers when fully loaded. Though scheduled to arrive and depart at the same instant, they park there from a few minutes to an hour. On the first day of this trial there were three buses there at the same time for some period, one of them for forty-minutes. They frequently obstruct the public alley, (north of plaintiff's lot) there not being room for three of them in the 'bus zone,' nor even for two. The buses emit noxious gases into Plaintiff's building which are injurious to health and offensive to the sense of smell, and at times it has necessitated the closing of the doors in Plaintiff's building. Passengers in varying numbers congregate in front of Plaintiff's premises, on the walk, and set their baggage thereon, to such an extent that ready access to the building is obstructed and entrance rendered difficult. The buses when loaded can be unloaded and reloaded in five minutes or less.

'As a result of such conditions patronage of the hotel naturally fell off half, the lessee surrendered her lease and quit business, and the taxi operator left, and Plaintiff has been unable to again rent the premises. The barber shop remained, but has been substantially injured by the noxious gas, obstruction to his entrance, and lack of parking space.'

It is enough to say there is substantial evidence to support the above finding. Talbott v. Ind. School Dist., 230 Iowa 949, 299 N.W. 556, 137 A.L.R. 234.

The trial court also specifically found that the bus companies 'have been maintaining a nuisance in front of plaintiff's premises in violation of his rights as an abutter and in violation of the general statutes prohibiting the maintenance of nuisances in the streets and plaintiff has been grievously damaged thereby.' But the trial court seemed to find most of plaintiff's damage was caused by the violation of the ordinance in that the buses would often remain in the zone, with the city's tacit permission, much longer (an hour or two) than was necessary to discharge or take on passengers and freight. However, Mrs. Beggs, the operator of the bus station, testified that these bus lines were connecting carriers and if one was late the other had to wait at the station until it arrived. She said: 'That is the law; that is an I.C.C. (Interstate Commerce Commission) regulation; that is a thing that has to be done. It don't make any difference whether it is fifteen minutes or an hour, they have to wait.' Since it is clear the zone was created for the use of these bus companies, it would seem they would have a good argument that the waiting stops for arrival of a connecting bus would be stops 'for such length of time as is necessary to take on or discharge passengers or freight.'

There is one other dispute which the trial court states was settled by agreement of counsel. There is a seven-foot sidewalk in front of plaintiff's building and the bus depot to the south. There never was a curb between this sidewalk and the twelve-foot parking, at least not for many years. Also there never was a curb between the parking and the paved highway. The ordinance describes the zone as a ten-foot strip on 'the paved portion of Washington Street' extending 'along the east curb of Washington Street.' The trial court stated that the parties seemed to agree the ordinance meant a ten-foot strip in the traveled portion of the highway, west of the twelve-foot parking. Counsel for plaintiff denies such an...

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  • Midwest Inv. Co. v. City of Chariton
    • United States
    • Iowa Supreme Court
    • February 5, 1957
    ...and the proposed conducting of part of plaintiff's business in the public street constitute a nuisance see Gates v. City Council of Bloomfield, 243 Iowa 1, 11-12, 50 N.W.2d 578, 584; Cowin v. City of Waterloo, 237 Iowa 202, 209, 21 N.W.2d 705, 708, 163 A.L.R. 1327; Incorporated Town of Ackl......
  • Hall v. Town of Keota, s. 48956
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    • December 11, 1956
    ...place for public travel, the term includes both the roadway for vehicles and the sidewalk for pedestrians.' Gates v. City Council of Bloomfield, 243 Iowa 1, 12, 50 N.W.2d 578, 584. See also Gallaher v. City of Jefferson, 125 Iowa 324, 330, 101 N.W. 124, 126; 63 C.J.S., Municipal Corporation......
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    • May 4, 1965
    ...acted allegally.' It is the nature of the act performed which determines whether it is legislative or judicial. Gates v. City of Bloomfield, 243 Iowa 1, 50 N.W.2d 578. We have held that certiorari will lie if the act is quasi judicial in character. Massey v. City Council of City of Des Moin......
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