Inc. Town of Polk City v. Gemricher

• Decision Date: 22 January 1919
• Docket Number: No. 32427.,32427.
• Parties: INCORPORATED TOWN OF POLK CITY, POLK COUNTY, v. GEMRICHER.
• Court: Iowa Supreme Court

185 Iowa 278

170 N.W. 378

INCORPORATED TOWN OF POLK CITY, POLK COUNTY,

v.GEMRICHER.

No. 32427.

Supreme Court of Iowa.

Jan. 22, 1919.

Appeal from District Court, Polk County; Thos. J. Guthrie, Judge.

Suit for a mandatory writ to compel defendant to remove an alleged obstruction from one of the principal streets of plaintiff incorporated town. Decree as prayed. Affirmed.E. S. Schuetz, of Des Moines, for appellant.

Mulvaney & Mulvaney, of Des Moines, for appellee.

STEVENS, J.

Plaintiff alleged in its petition that the defendant has built and maintains platform scales on one of its principal streets for personal profit, and that same is so constructed as to create a nuisance. Defendant in answer admitted that he maintained scales in the street, but denied that same create, or constitute, a nuisance, and averred that he has maintained and operated same with the knowledge and consent of plaintiff, its officers and agents, and that this right to do so has never been revoked.

Two principal grounds relied upon for reversal are: (a) That plaintiff has a plain and adequate remedy at law; and (b) that no special injury to plaintiff is alleged or proven, and that plaintiff is without authority to maintain a suit in equity to compel the removal of an obstruction from its streets.

Platform scales have apparently been maintained by the defendant and others at the place in question since about the year 1883. The evidence tends to show that the surface water is obstructed thereby in a way to cause gutters to be washed in the unpaved street, and, at times, to become muddy, and that in winter the same causes ice to form on the adjacent sidewalk. It does not appear from the record whether any other consent than that which may be implied from the lapse of time was ever given defendant to erect or maintain the scales in the street, but before suit was commenced the town council caused a written notice to be served upon him, demanding that he remove the scales within 15 days.

Section 753 of the Code confides the care, supervision, and control of streets to cities and incorporated towns, and requires that same be kept open, in repair, and free from nuisance. It is not denied by counsel for appellant that plaintiff, acting through its proper officers, had the right to revoke permission, if any was ever granted defendant, to maintain scales upon the street, but, as we understand counsel, it is his contention that the officers of plaintiff should have proceeded summarily to remove the scales instead of resorting to a suit in equity. We held, in Emerson v. Babcock, 66 Iowa, 258, 23 N. W. 657, 55 Am. Rep. 273, that:

“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, 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.”

See, also, Lacy v. Oskaloosa, 143 Iowa, 704, 121 N. W. 542, 31 L. R. A. (N. S.) 853, and Callahan v. City, 170 Iowa, 719, 153 N. W. 188, L. R. A. 1916B, 927.

[1][2] But, conceding the authority of plaintiff in its corporate capacity to cause the scales to be removed, is the remedy thus provided exclusive, or may such municipality by proper proceeding invoke the aid of a court of equity in causing obstructions to be removed from its streets, and to abate a nuisance existing therein? Counsel for appellant cites and relies upon Ottumwa v. Chinn, 75 Iowa, 405, 39 N. W. 670, but this case is not in point. The city of Ottumwa sought to enjoin the defendant from maintaining a slaughterhouse at a place within the city, where it was obnoxious to residents in the vicinity thereof, and it was charged was injurious to the health and comfort of the inhabitants of said city. The court held that plaintiff did not have such special interest in the matter complained of as entitled it to maintain a suit to enjoin or abate it as a nuisance. In the case at bar, the evidence shows that the scales tend to create a nuisance in the street and constitute an obstruction to travel. Section 753, as above stated, requires that cities and incorporated towns keep their streets in repair and free from obstruction. Not only is this true, but such municipalities may be liable for damages caused by obstructions in the streets. It has been generally held that, where the duty of maintaining the streets in repair and free from obstructions is confided to municipalities, they have such interest as entitles them to maintain a suit in equity to enjoin obstructions in the...