Inc. Town of Spencer v. Andrew

• Decision Date: 28 January 1891
• Parties: INCORPORATED TOWN OF SPENCER v. ANDREW ET AL.
• Court: Iowa Supreme Court

82 Iowa 14

47 N.W. 1007

INCORPORATED TOWN OF SPENCER

v.ANDREW ET AL.

Supreme Court of Iowa.

Jan. 28, 1891.

Appeal from district court, Clay county; GEORGE H. CARR, Judge.

Action in equity to determine the right of defendants to set, maintain, and use a weighing scale in Main street of the plaintiff town, and to restrain them from so doing. The case is again submitted under a stipulation that defendants waive the right of urging that plaintiff has a remedy at law. Decree was entered dismissing plaintiff's petition, from which plaintiff appeals.Parker & Richardson, for appellant.

Hughes & Hastings and F. H. Helsell, for appellees.

GIVEN, J.

1. Appellees insist in argument that appellant has not made all the evidence taken on the trial of record, namely, Exhibit A and Exhibit No. 1, and that therefore the case cannot be tried de novo. We are not referred to any part of the six abstracts or of the transcript in support of this claim, but are left to search these several hundred pages to see what they show, if anything, as to these exhibits. In the absence of any specific reference, we conclude that we may rely upon the certificate of the judge that the transcript contains all the evidence, and therefore consider the case de novo.

2. The following statement of facts, with those hereafter mentioned, will be sufficient to a correct understanding of the questions presented: Defendant Andrew was the owner of two lots fronting on Main street, upon which he and McQueen decided to erect a building in which to carry on the fuel and implement business. April 17, 1888, the petition of defendant Andrew for permission to put in a scale in Main street in front of said lots was granted by the town council. Thereupon defendants ordered a street scale with levers and attachments, so that the scale-beam would be inside the building, and changed the construction of their building accordingly. On May 15, 1888, after the scale had been ordered and shipped and freight paid, the town council passed a resolution rescinding said permission, and caused notice thereof to be served on the defendant Andrew. Some attempt was made to arrive at an arrangement satisfactory to both parties, but, failing, the defendant proceeded to set their scale in the street, under the permission granted to Andrew. The principal conflict in the testimony is whether the scale is an obstruction to public travel. We may here say that the decided preponderance of the evidence is that the scale is not an obstruction or hindrance to public travel. The scalebeam is inside of the building, and connected by levers under the sidewalk, and no part of the scale shows upon the street except the platform, which is so substantial, and near the level of the street, that it can be safely and conveniently traveled over.

3. Our next inquiry is whether the incorporated town of Spencer had power to grant the permission given to the defendant Andrew. That the title to public streets and alleys is in the city or town in trust for the use of the public is not questioned. That other uses than travel may be made of the public streets and alleys is shown by numerous provisions of the statute granting power to authorize other uses. The paramount purpose of maintaining streets and alleys is for public travel, and all other uses must be subordinate thereto. The city or town must keep them free from obstructions, except where the use or obstruction is such as the city or town is specifically empowered to and has authorized. Code, § 524; Heath v. Railroad Co., 61 Iowa, 11, 15 N. W. Rep. 573. Among the powers conferred upon incorporated cities and towns is the right “to establish and regulate markets, to provide for the measuring or weighing of hay, coal, or any other articles of sale.” Code, § 456. In Davis v. Anita, 73 Iowa, 325, 35 N. W. Rep. 244, the town under authority of this provision passed an ordinance appointing a weighmaster, and providing a penalty for selling certain commodities within the town, when the quantity exceeded 1,000 barrels, without being weighed upon the city scales, and declaring a certain scale...