Gates v. City of Bloomfield

• Decision Date: 06 May 1952
• Docket Number: No. 48023,48023
• Citation: 53 N.W.2d 279,243 Iowa 671
• Parties: GATES v. CITY OF BLOOMFIELD et al.
• Court: Iowa Supreme Court

Page 279

53 N.W.2d 279

243 Iowa 671

GATES v. CITY OF BLOOMFIELD et al.

No. 48023.

Supreme Court of Iowa.

May 6, 1952.

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

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

OLIVER, Justice.

This action is a sequel to Gates v. City Council of Bloomfield, 243 Iowa ----, 50 N.W.2d 578. That was certiorari to the City Council to test the validity of certain ordinances. Except for some omissions, the facts stated in the petition at bar are substantially those shown in the trial of the certiorari case.

Plaintiff alleged he owned a property and building in Bloomfield in which was a hotel, restaurant and barber shop, with a west front of 43 feet on Washington Street. Adjoining this on the south was a property 12 feet wide which also fronted west on Washington Street. It was leased for a bus depot which was operated by defendant bus lines. In 1950 the City Counsel enacted Ordinance 136, which was superseded in 1951 by Ordinance 143. Ordinance 136 established a bus stop zone in the paved street, 10 feet wide and along the entire 43 feet frontage of plaintiff's property and 10 feet of the bus depot property and provided: 'It shall be unlawful for the operator of any vehicle, except operators of common carrier buses engaged in interstate and/or intrastate business, to park said 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.' The ordinance provided for signs reading, 'No parking-Bus stop.' Ordinance 143 was similar to Ordinance 136 with some changes in form and language which need not be considered in this appeal.

Upon the adoption of Ordinance 136, the city marked with yellow lines on the pavement, a zone, 22 feet wide and 53 feet long and erected the signs required by the ordinance which were set on heavy concrete bases placed in the street. Thereafter the large buses of both defendant bus lines commenced stopping for considerable periods of time to load and unload and to make connections with and transfer passengers and freight to other buses, and parking diagonally in the zone in many instances continuously for more than one hour, with the front ends of the buses frequently projecting over the sidewalk to about two feet from plaintiff's building. Ingress and egress to and from the building to the sidewalk and to the street was impeded and blocked by the buses, passengers and piles of baggage. The property was deprived on parking space by the signs placed in the zone and at times was made untenantable by noxious gases emitted by buses. Traffic on Washington Street was obstructed and was halted when buses were stopped in the zone.

The ordinances constituted an unlawful obstruction of the street and a hazard to the traveling public. The taking of the space in front of plaintiff's business and property was an unlawful appropriation of the street for private business and infringed upon plaintiff's rights in the street as an abutting owner. The establishment of bus zone, and the stopping, starting and parking of buses emitting noxious gases and obstructing the street and ingress and egress to the building constituted a nuisance, which the city maintained, acting in conjunction with defendant bus lines. Plaintiff pleaded some of the matters complained of, damaged and rendered unprofitable the business of the hotel, restaurant and barber shop which had occupied his building. He prayed $10,000 damages.

Defendant City of Bloomfield filed a motion to dismiss the petition as against it, which the trial court sustained on the ground: 'Because the enactment of the ordinances was within the governmental functions of the city, the defendant city was not liable for any damages sustained by plaintiff as a direct or indirect result thereof, * * *.' Plaintiff has appealed. In the consideration of such a motion, well pleaded, relevant and issuable facts are deemed true.

The certiorari case, Gates v. City Council of Bloomfield, supra, 243 Iowa ----, 50 N.W.2d 578, held Ordinance 136, in effect, turned over to the bus companies a strip of the paved street abutting the entire 43 feet frontage of plaintiff's property, to be used as a passenger platform and freight loading dock by the interurban motor buses. Otherwise stated, the ordinance was a grant to the bus companies of the use of the street to carry on their business. Both ordinances were held illegal and their adoption in excess of the proper jurisdiction of the city council.

In that case the trial court had found the bus companies 'have been maintaining a nuisance in front of plaintiff's premises in violation of his rights as an abutter' and general nuisance statutes. The trial court attributed most of plaintiff's damage to 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. The decision of this court suggests the record showed these lengthy stops were to await the arrival of connecting buses and that it might be argued, such stops were for the length of time necessary to take on or discharge passengers or freight, as permitted by the Ordinance. In any event, the use of the zone made by the bus companies under the illegal ordinance, was unlawful.

Section 657.1, Code of Iowa 1950, I.C.A. provides, whatever is injurious to the health, indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance. Among the nuisances listed in section 657.2 are the obstructing of public roads and the occasioning of noxious exhalations injurious to the health of people. Section 389.12 requires cities and towns to keep streets open and free from nuisances.

Real property consists not alone of the tangible thing but also of certain rights therein sanctioned by law, such as rights to access, light, air and view. Marterial interference with the rights of ingress and egress, etc., of owners of property abutting on streets and highways is a taking of the property of such owners. Liddick v. Council Bluffs, 232 Iowa 197, 5 N.W.2d 361; Anderlik v. Iowa State Highway Commission, 240 Iowa 919, 924, 38 N.W.2d 605. It is well settled that one who is specially injured by a public nuisance may maintain an action for damages by reason thereof, where his injury is distinct from that of the public. Ryan v. Emmetsburg, 232 Iowa 600, 603, 4 N.W.2d 435; 66 C.J.S., Nuisances, § 78, p. 831.

Park v. C. & S. W. R. Co., 43 Iowa 636, 639, states:

'Among the various injuries resulting from nuisances * * * those resulting from the obstruction of highways leading to the premises of the plaintiffs, and interfering with access thereto and causing other special damages, are held to be grounds of recovery in an action by the party injured.'

Nor is it necessary that the obstruction of access be continuous to entitle the owner to relief. Baines v. Marshfield & Suburban R. Co., 62 Or. 510, 124 P. 672. That decision held the operation in a street of a private tramway wrongfully authorized by city ordinance was a nuisance which would entitle an abutting property owner to damages.

Pugh v. Des Moines, 176 Iowa 593, 606, 156 N.W. 892, 896...