Inc. Town of Lamoni v. Smith
| Decision Date | 12 December 1933 |
| Docket Number | No. 41802.,41802. |
| Citation | 251 N.W. 706,217 Iowa 264 |
| Parties | INCORPORATED TOWN OF LAMONI v. SMITH et al. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Decatur County; H. H. Carter, Judge.
Action in equity to enjoin the defendants from maintaining certain curb pumps for dispensing gasoline, in a street of plaintiff. From a decree in favor of plaintiff, the defendants appeal.
Affirmed.O. M. Slaymaker and R. E. Killmar, both of Osceola, for appellants.
A. P. Olsen, of Leon, and Bracewell, Murrow & Poston, of Corydon, for appellee.
The appellee is an incorporated town, situated in Decatur county, Iowa. One of its streets is Main street, extending east and west. State street runs north and south and commences at the south line of Main street, running south, but does not extend north of Main street. A continuation of the east line of State street to the north would pass through the approximate center of appellants' property, which abuts Main street on the north. This intersection is in the residence part of said town. Main street is paved with an 18-foot slab, laid by the state, plus a strip of pavement 4 feet wide on each side thereof, laid by the town, the cost of which was assessed against the property owners. The outer edge of this additional strip is a curb about 6 inches high. Thus the full length of the pavement is 26 feet. At the point where State street and Main street intersect there is also a curved slab on the south side of the pavement for the use of traffic passing from one street to the other.
When the pavement was laid, excavation was made for the same, and this left a bank of earth in the street in front of the Smith property to the north of the pavement, which witnesses estimate from two to four feet in height. The engineer who testified says that the part of the street north of the curb on the pavement as originally constructed was parking, and these curb pumps were in the north part of such parking. This would include the bank of earth referred to. The distance from the north side of the completed pavement to the south side of the curb pumps is about 15 feet. When the Smiths constructed their oil station, they broke off the curbing on the north side of the pavement and constructed a cement driveway to the east and west of their oil station, and also widened the pavement.
In September, 1930, the appellants constructed a gasoline filling station on their property, and in so doing they placed a row of pumps between the curb and the sidewalk. They had requested permission from the town council to so place this row of (two) curb pumps, and the town council denied them this privilege and the appellants were so notified; but, in spite thereof, the appellants surreptitiously constructed the line of curb pumps between the curb and the sidewalk in front of their property, on the night of October 3d, or after midnight, October 4, 1930, without any knowledge on the part of appellee or its officers, and the same were constructed wholly within the limits of the public street. Appellee, on the 12th of November, 1930, served written notice on the appellants, demanding the immediate removal from said street of said pumps and bases thereof, and demanding that they be removed by 12 o'clock noon of the 13th day of November, 1930. The appellants failed and neglected to remove said pumps and the bases thereof, and appellee asked that the appellants be enjoined from in any manner interfering with the appellee or its officers or agents in removing said curb pumps and bases and all other material in connection therewith, and for general equitable relief.
[1] Appellee alleges the existence of said curb pumps is an obstruction in the street and constitutes a nuisance. The fact situation is not seriously in dispute and is about as above set out. The appellee bottoms its rights here primarily upon section 5945 of the Code of 1931, reading as follows: “They shall have the care, supervision, and control of all public highways, streets, avenues, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.”
This has been for many years the law in this state. This statute has been passed on many times by this court, and it has been held that it imposes a specific duty on the city or town to keep its streets free from nuisances.
[2] The Legislature, however, by Acts of the Forty-Third General Assembly, chapter 168, now appearing as section 5745 of the Code of 1931, provided that: “They shall have power to limit the number of, regulate, license, or prohibit * * * gasoline curb pumps in streets, highways, avenues, alleys and public places.”
One question, therefore, is whether section 5745 affects, limits, or modifies in any way section 5945. It is one contention of the appellants that section 5745 confers certain powers upon the town, but that the section is not...
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