Jenks v. Lansing Lumber Co.

• Decision Date: 13 February 1896
• Parties: JENKS v. LANSING LUMBER CO.
• Court: Iowa Supreme Court

97 Iowa 342

66 N.W. 231

JENKS

v.LANSING LUMBER CO.

Supreme Court of Iowa.

Feb. 13, 1896.

Appeal from district court, Allamakee county; W. A. Hoyt. Judge.

Action to recover for the use and occupation of certain real estate, and for trespassing upon the same, and for obstructing streets and alleys adjacent to said property, to the damage of the plaintiff. There was a trial by jury, verdict and judgment for the plaintiff, and defendant appeals. Affirmed.James H. Trewin, for appellant.

Stilwell & Stewart, for appellee.

ROTHROCK, J.

1. The petition in the case is in three counts. In the first count it is averred that the plaintiff is the owner of certain lots and lands in the city of Lansing, and it is sought to recover of the defendant, as a lessee, for the use and occupation of the property since January 1, 1889. By the second count it is claimed that the defendant entered on the property with teams and wagons, and piled lumber and rubbish thereon, and destroyed sidewalks constructed by the plaintiff adjacent to said property. The third count is a showing that the defendant used the street and alleys on which said land abuts so as to obstruct the same by piling lumber thereon and erecting therein buildings and platforms for the loading of the lumber, and in keeping in front of said premises large numbers of freight cars for the purpose of loading lumber, in such a manner as to make the use of the property of plaintiff without value. Damages are demanded for the use of the property and for injury thereto, and it is prayed that defendant be enjoined from maintaining the alleged nuisance in the street and alleys. The defendant answered the petition in seven divisions. The plaintiff demurred to the answer, and the demurrer was sustained as to six divisions. The first division of the answer was not attacked by the demurrer. The action was tried upon the issues made in that division, and there was a verdict and judgment for the plaintiff for $150. It should further be stated in this connection that the court denied the application for an abatement of the alleged nuisance, and the plaintiff appeals from this order.

2. It is alleged in two divisions of the answer that the railroad cars kept and used in the street belonged to the Chicago, Milwaukee & St. Paul Railway Company, and a motion was made by defendant asking that the railroad company be made a party to the suit. The motion was denied, and complaint is made of that ruling. If it should be conceded that an order restraining and prohibiting the defendant company from placing cars in the street for the purposes of use in its business would affect the railroad company, and that it would have been a proper party (which question we do not determine), there was no prejudicial error in the ruling of the court, because a restraining order was denied even as against the defendant, and the final judgment in no way affects either party in that respect.

3. In the second count of the petition the plaintiff seeks a recovery for trespass in entering on the property and using and injuring the same. That count was answered in the second division of the answer as follows: “For answer to the second count of plaintiff's petition, defendant states that the property described in plaintiff's petition is, and since the 1st of January, 1889, has been, unfenced, unoccupied, and commons, except a small part of lot eight (8) in government lot four (4), and that the general public has traveled and passed over plaintiff's premises without hindrance or objection, and with plaintiff's knowledge, during all of said time.” The demurrer was sustained to this part of the answer. The facts recited in what we have above quoted, as it appears to us, furnish no legal excuse for defendant's entering on the property, and occupying it in a way to injure it, or in doing more than was being done by the general public. But it is claimed this part of the answer is allowable in mitigation of damages. It is not good as pleaded, even if it would be otherwise. The facts are pleaded in justification, and not in mitigation, and they should have been so pleaded. Ronan v. Williams, 41 Iowa, 680.

4. The third count of the petition recited facts as to the obstruction of the street by buildings, platforms, lumber, and cars in such manner as to render the use of plaintiff's land of no value. The following is the third division of the answer, to which the demurrer was sustained: “For answer to the third count of plaintiff's petition, defendant states that it is, and for more than the last five years has been, engaged in the manufacture and sale of lumber, laths, shingles, and moldings; and that its mills, lumber yards, and factories have been by itself and its grantors located and used in the same place, near the property alleged by the plaintiff to be owned by her, for a period of more than ten years last past; and that the streets and alleys about and near the same and said property claimed by plaintiff have been used by the defendant and its grantors for the purpose of carrying on said lumber business openly, notoriously, adversely, and continuously for more than ten years last past, under claim of right, and with the knowledge and acquiescence of the city of Lansing, Iowa; and that the defendant has at no time made any use of the said streets and alleys, or of any streets and alleys in the vicinity of plaintiff's property, other than was and is necessary, reasonable, and proper for carrying on its business, and has and does in no way interfere with the free use and enjoyment of plaintiff's property, or of access thereto; and that the plaintiff has suffered no injury or damage by reason of defendant's use of said streets and alleys, other, more than, or different from the public generally, and has no right to maintain this action for the alleged obstruction of said streets and alleys.” It is urged in behalf of appellant that the owners of lots abutting on streets have the right to make a proper use of the street. This proposition may be conceded, but we cannot assent to the doctrine that even an abutting owner may lawfully erect buildings in a street, and obstruct it with cars and lumber in such manner as to destroy the use of the land or lots of others, and escape liability on the ground that it is a reasonable or proper use. 2 Dill. Mun. Corp. § 734, cited by appellant's counsel, in no way sustains such a rule. The count of the petition to which this division of the answer applies describes the condition of the street as a nuisance, and its sufficiency in that respect cannot be questioned. The case of State v. Railway Co., 77 Iowa, 442, 42 N. W. 365, was an indictment for obstructing a highway, and in discussing the question as to the right to obstruct the highway for business purposes it is said that “an obstruction in a highway will not be excused on the plea of its being necessary for the carrying on of a party's business, though such obstruction be only occasional.” It is said that the plaintiff's right of access to her property was a private right, and that she could not be allowed redress unless it was unreasonably obstructed. But she had other rights in the use of her property than mere access to it, and the petition does not limit the injury to the mere right of access. It is also urged that in the third division of the answer it is denied that plaintiff sustained any damage except such as was common to the public generally. It is true that the answer contains that averment, and a denial of damages was proper, but the first division of the answer denies all the averments of the...