Lacey v. City of Oskaloosa
| Decision Date | 02 June 1909 |
| Citation | 121 N.W. 542,143 Iowa 704 |
| Parties | W. R. LACY ET AL., Appellants, v. THE CITY OF OSKALOOSA ET AL., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED TUESDAY, SEPTEMBER 28, 1909.
Appeal from Mahaska District Court.--HON. W. G. CLEMENTS, Judge.
ACTION in equity to restrain the defendant city and its officers from removing certain hitching posts or racks which have been planted and maintained along the street lines bordering a public park. The petition was by the district court dismissed, and plaintiffs appeal.
Affirmed.
Burrill & Devitt and J. F. & W. R. Lacey, for appellants.
C. C Orvis and J. C. Williams, for appellees.
The site of the town of Oskaloosa was platted in the year 1844 by the commissioners of Mahaska County, who for that purpose made entry of the land, which was then a part of the public domain. The town was incorporated in the year 1853 and is now a city of about 12,000 inhabitants. Near the center of the tract there was platted a block of land designated as a "public square." This square constitutes a rectangle measuring two hundred and fifty-six and one-half feet on each side and is bounded by public streets each eighty feet in width. The county courthouse faces the square from the opposite side of one of the adjacent streets, and the remainder of the immediate neighborhood includes many of the principal business places of the city. Within recent years the streets about the square have been paved, and three of the streets are occupied by car tracks. The square itself has been improved and ornamented with trees, walks, seats and other accessories commonly provided in public parks. At an early date the park was inclosed by a fence of primitive pattern, which was used to a greater or less degree as a hitching place for the horses of farmers and others visiting or trading at the neighboring shops and stores. Hitching posts and racks were also provided from time to time and very generally used. In the year 1885, on petition of certain citizens, the city council granted them leave to "erect hitching racks around the public square without expense to the city." On one occasion, witnesses say probably in 1885 or earlier, the racks were removed "surreptitiously," but leave was obtained from the city authorities to restore them, and they have since been maintained by private subscription and at considerable expense. The posts were set as near as practicable on the line between the street and the square. The sidewalks are laid wholly upon the park side of the line, and the street paving extends beyond the line of posts and forms a gutter between that line and the sidewalk. Teams hitched to the rack stand wholly within the street. The racks have been continually used for their intended purpose, and on many days the hitching room thus afforded is entirely filled. During the winter season twenty-four to thirty-nine loads of manure and other rubbish and waste accumulate where teams are allowed to stand, but during the summer the streets are cleaned with reasonable frequency. The streets about the square have been used to some extent as a market place, though they have never been set apart for that purpose by action of the city council. The plaintiffs, or some of them have contributed to the planting and maintenance of the posts and racks, and all of them are property owners and business men whose shops and stores are in the immediate vicinity, and they have found, or claim to have found, that said racks and the convenience thereby afforded to the public add value to their property and business. On March 11, 1907, the city council ordered the racks removed and re-erected at another location several blocks distant, and thereupon this action was instituted to restrain the execution of such order. At the date of the order, the city of Oskaloosa had not taken advantage of the statute allowing it to elect a board of park commissioners, and the control of its public parks as well as of its streets was then vested in the city council. On the following day, however, the council provided for the election of such commissioners at the ensuing municipal election, and the board thus chosen and their successors in office have since exercised the powers granted by the statute. Code Supplement 1907, title 5, chapter 9.
Plaintiff's petition sets out with much particularity the municipal history of Oskaloosa with reference to the establishment, maintenance, and use of the hitching racks, alleges that in platting the city the county commissioners intended to dedicate the square and surrounding streets as a place to be used for hitching teams, and that the dedication and use of the property for that purpose for more than sixty years can not now be lawfully interfered with by the city. It avers that the maintenance and use of said racks does not constitute any nuisance, nor are they in any manner an obstruction to the use of the streets, but are a matter of great public convenience. Wherefore it is demanded that the city be permanently enjoined from removing or destroying the racks or changing the location thereof. Answering the petition the defendants admit their intention to remove the racks, allege their right to do so under the statute and by virtue of the police power vested in the city, and deny the plaintiffs' claims generally. Upon hearing the testimony offered, the trial court found for the defendants, dismissed the bill, and the plaintiffs appeal.
By statute the control and care of the streets are vested exclusively in the city, and it is made its duty to see that they are kept open and in repair and free from nuisances. Code, section 753. They have power to provide market places and regulate the use thereof, but may not levy any toll or charge for the standing of teams and vehicles in such places or in the streets adjacent thereto on market days and evenings previous thereto. Code, sections 717 and 751. The powers thus conferred are legislative in character, and within the limits prescribed by statute are plenary. The only limit upon them which the courts have been inclined to recognize is that they shall not be exercised unreasonably.
The wisdom of a legislative act is not a matter for judicial consideration or review, nor will the courts inquire into the necessity of a change or improvement in a public street ordered in due form by municipal authority. Miller v. Webster City, 94 Iowa 162, 62 N.W. 648; Cherokee v. Town Lot Co., 52 Iowa 279, 3 N.W. 42; Dunham v. Hyde Park, 75 Ill. 371; Greencastle v. Hazelett, 23 Ind. 186; Brewster v. Davenport, 51 Iowa 427, 1 N.W. 737; Seward v. Rheiner, 2 Kan.App. 95 (43 P. 423); Church v. Baltimore, 6 Gill 391 (48 Am. Dec. 540). The statute provides that the obstructing or incumbering of public roads by buildings, fences, or otherwise is a nuisance (Code, section 5078); and, as we have already seen, cities are charged with the duty of keeping the streets free therefrom.
The primary use or purpose for which streets are established is to afford the public a way of passage or travel, and, while the city is not under mandatory obligation to open up and improve streets by the removal of natural obstructions which render them impassable, whenever it does open and improve them, it must take care that these ways are not obstructed or incumbered by the unauthorized act of any person or persons. A "street" is a public way from side to side and from end to end, and any private use thereof which in any degree detracts from, hinders, or prevents its free use as a public way to its full extent is within the meaning of the law an obstruction or incumbrance. See Quinn v. Baage, 138 Iowa 426, 114 N.W. 205, and cases there cited.
The limited extent of the obstruction is immaterial as affecting the right of the city to remove it. The fact that, notwithstanding the obstruction, there is still ample room left for passage of teams and travelers, will not exempt it from liability to removal whenever ordered by the proper municipal authority. Quinn v. Baage, supra; Philbrick v. University Place, 88 Iowa 354, 55 N.W. 345; Patterson v. Vail, 43 Iowa 142. Nor is it any defense to such order that the obstruction is in fact a thing of public convenience or benefit. Emerson v. Babcock, 66 Iowa 257, 23 N.W. 656; State v. Kaster, 35 Iowa 221.
The city has no power or authority to grant any individual or any number of individuals the right to permanently occupy any part of a street with any structure or device for their private use, convenience, or profit. It may vacate a street, but it can not authorize its perversion to other or private uses so long as it remains a street. For example, it has been held, in the absence of statute granting such authority, that a city can not lawfully permit a street to be incumbered by a hack stand. Branahan v. Hotel Co., 39 Ohio St. 333 (48 Am. Rep. 457). Platform scales for the convenience of the business of an abutting owner may be ordered removed. Emerson v. Babcock, 66 Iowa 257 23 N.W. 656. In deciding the case just cited, we said: ...
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