Livingston v. Davis

• Decision Date: 13 December 1951
• Docket Number: No. 47905,47905
• Citation: 50 N.W.2d 592,27 A.L.R.2d 1237,243 Iowa 21
• Parties: , 27 A.L.R.2d 1237 LIVINGSTON et al. v. DAVIS et al.
• Court: Iowa Supreme Court

Page 592

50 N.W.2d 592

243 Iowa 21, 27 A.L.R.2d 1237

LIVINGSTON et al. v. DAVIS et al.

No. 47905.

Supreme Court of Iowa.

Dec. 13, 1951.

Messer, Hamilton, Cahill & Bartley, of Iowa City, for appellants.

William L. Meardon, of Iowa City, for appellees.

GARFIELD, Justice.

Three inhabitants of a Class A Residence District in Iowa City brought this action in equity to enjoin defendants from operating in the district a private preschool or nursery school as a claimed violation of the city zoning ordinance and a nuisance. Following trial the court held there was no violation of the ordinance but certain practices of defendants made operation of the school a nuisance. Defendants were enjoined from certain uses of driveways leading to their property and given 65 days to remedy other conditions held to be objectionable and to meet certain requirements. Both sides have appealed.

I. During pendency of the appeal one plaintiff (Mrs. Evans), next door neighbor of defendants, died and the property formerly occupied by her as a life tenant has been conveyed by the remainderman to third persons who have not been substituted as parties. Based on these facts defendants have moved to dismiss the appeal of Mrs. Evans and affirm their cross appeal as to her. We think the motion is good.

The present owners could have been substituted for Mrs. Evans. Section 686.17, Code, 1950, I.C.A.; Rules 15, 16, Rules of Civil Procedure, 58 I.C.A. There has been ample opportunity for such substitution. Apparently the present owners do not desire to be substituted as plaintiffs.

Of course the deceased Mrs. Evans no longer has any right it is necessary to protect by injunction although she may have had at the time of trial. See Rider v. Narigon, 204 Iowa 530, 215 N.W. 497; Davis & Shangle v. Boyer, 122 Iowa 132, 135, 136, 97 N.W. 1002; Faucher v. Grass, 60 Iowa 505, 15 N.W. 302. See also Price v. Baldauf, 90 Iowa 205, 209, 57 N.W. 710.

II. In their opening brief plaintiffs argue only that operation of defendants' preschool is a violation of the zoning ordinance. They do not argue it amounts to a nuisance. We may therefore assume that contention is waived so far as plaintiffs' appeal is concerned. Rule 344(a)(4) (Third), Rules of Civil Procedure; Tuttle v. Nichols Poultry & Egg Co., 240 Iowa 199, 210, 35 N.W.2d 875, 880, and citations; Carlson v. Bankers Trust Co., Iowa, 50 N.W.2d 1, 4. It is true in reply to defendants-cross-appellants' brief plaintiffs seek to sustain the limited relief granted them on the nuisance issue.

III. The area in question is commonly known as Woodlawn Addition at the east end of Iowa Avenue in Iowa City, a tract about 674 feet east and west by 615 feet north and south. The lots, 240 feet deep north and south, front on each side of a private drive extending east from the end of Iowa Avenue. Six residences are on the south, five on the north side of the drive. Defendants own the fourth house from the west facing north on the drive. The two remaining plaintiffs own the second and sixth homes respectively also facing north. Thus one residence separates defendants from each plaintiff. One such residence was Mrs. Evans'.

Woodlawn is in a Class A residence district under the city zoning ordinance. Permissible uses in the district are stated in 12 subsections of section 395 of the ordinance, one of which is, '(e) Public schools, Colleges, University Buildings and Uses, and Private Elementary Schools, taking only children up to and not exceeding the age of 14.' The vital question upon plaintiffs' appeal is whether, as the trial court held, defendants are operating such a private elementary school as the ordinance permits.

Defendants purchased their property in the summer of 1946 for $13,000. Their house is large, with two stories, nine rooms and bath downstairs. October 1, 1946, they started operating their nursery school for children aged two to five in the downstairs, with a playground about 150 by 82 feet (width of their lot) at the rear. Children are brought to the school usually by parents in automobiles between 8 and 9:30 a. m., stay until 4:30 to 5:30 p. m. when their parents call for them. Children do not come on Sundays or holidays and leave at noon Saturdays. Largest attendance has been 50 children at the time of trial. There are fewer in the summer--35 in 1950.

Defendants, husband and wife, are college graduates and experienced teachers. They employ two other young ladies as teachers and a full-time registered nurse who carefully looks over the children each morning for skin rash and condition of eyes, ears and nose. None of the teachers has a certificate to teach in public schools in Iowa. Children are told stories, taught singing, drawing, painting, coloring, numbers with blocks and some other things. Records are played, 'movies' shown, and there is regular supervised play. The school has regular schedules and rules. Report card are issued about every eight weeks. Defendants charged $30 a month per child which had been increased to $35 at the time of trial.

There is expert testimony from professors at the state university that the age limit for schools is being pushed down, preschools are part of the public school system in some other states, are regarded by people in educational work as part of an elementary school, 'there is a definite trend toward including the preschool in the regular school program,' children who attend preschool are generally more advanced than others when they enter kindergarten and grade school, defendants' school is an elementary school. This evidence, while of course not controlling, seems worthy of consideration. Witnesses, apparently disinterested and informed, say defendants' school is an excellent one. The state university also operates a preschool in Iowa City.

We agree with the trial court that defendants are operating such a private elementary school as the zoning ordinance permits in a Class A Residential District.

Like many other courts, we have said zoning is an exercise of the police power delegated by the state to the municipality and such delegated power must be strictly construed. Downey v. City of Sioux City, 208 Iowa 1273, 227 N.W. 125; Granger v. Board of Adjustment, 241 Iowa 1356, 1363, 44 N.W.2d 399, 402. Like decisions include City of Little Rock v. Williams, 206 Ark. 861, 177 S.W.2d 924, 925; Langbein v. Board of Zoning Appeals, 135 Conn. 575, 67 A.2d 5, 7; Kass v. Hedgpeth, 226 N.C. 405, 38 S.E.2d 164. And see cases cited next below.

A zoning ordinance should not be extended by implication to prevent a use not clearly prohibited. See Jones v. Board of Adjustment, 119 Colo. 420, 204 P.2d 560, 565; Landay v. MacWilliams, 173 Md. 460, 196 A. 293, 114 A.L.R. 984, 988; 440 East 102d St. Corp. v. Murdock, 285 N.Y. 298, 34 N.E.2d 329, 331, and citations; Luedke v. Carlson, S.D., 41 N.W.2d 552, 554; 58 Am.Jur., Zoning, section 11; 62 C.J.S., Municipal Corporations, § 226(16)a, p. 480.

There can be little doubt defendants' place is a school. An accepted definition of school is 'a place for instruction in any branch or branches of knowledge.' See Webster's New Intl. Dict., 2d Ed.; Alexander v. Phillips, 31 Ariz. 503, 254 P. 1056, 52 A.L.R. 244, 246, 247 (holding stadiums for athletic games are included within the term 'schoolhouses'); Langbein v. Board of Zoning Appeals, supra, 135 Conn. 575, 67 A.2d 5, 8.

Another common definition of school is 'a place where instruction is imparted to the young.' People v. Levisen, 404 Ill. 574, 90 N.E.2d 213, 215, 14 A.L.R.2d 1364; Board of Education v. Ferguson, 68 Ohio App. 514, 39 N.E.2d 196, 198; 47 Am.Jur., Schools, section 2. Our conclusion that defendants operate a school finds support especially in the Langbein and Levisen cases, supra, and in People v. Collins, 191 Misc. 553, 83 N.Y.S.2d 124.

If defendants' place is a school certainly it is a private school, organized and managed by individuals, not by the public as an instiution of the state. See 47 Am.Jur., Schools, section 2, page 298; 56 C.J., Schools and School Districts, section 3. The only debatable question is whether it is an 'elementary' school 'taking only children up to and not exceeding the age of 14.'

'Elementary' means 'pertaining to * * * the elements, rudiments, or first principles of anything; initial; rudimental.' Webster's New Intl. Dict., 2d Ed. Other definitions include 'primary; simple.' 29 C.J.S. p. 662. An elementary school has been defined as 'a school for the elementary education of children, * * *.' 56 C.J., Schools and School Districts, section 5. Defendants' school seems to fall squarely within the above definitions.

It is somewhat significant this zoning ordinance specifies only the maximum age limit of children who may attend permissible private elementary schools. The entire ordinance goes into much detail and was evidently intended to be specific. Had it been the purpose to impose a minimum age limit for such schools that purpose could easily have been expressed.

It is true, as plaintiffs argue, a statute pertaining to our public school system provides that persons between 5 and 21 shall be of school age, section 282.1, Code, 1950, I.C.A. Code section 286.2 in the chapter on Supplementary Aid to School Districts states that for the purposes of this chapter an elementary pupil is one of school age attending public school who has not entered the ninth grade. A like statute is section 286A.2. And section 260.5 in the chapter on Board of Educational Examiners says, 'For the purposes of this act the elementary school field shall be construed to include the kindergarten and grades one to eight * * *.'

These statutes relate only to our public school system in which there are no nursery schools. They do not purport to define or describe private elementary schools. As stated in People v. Collins, supra, 191 Misc. 553, 83 N.Y.S.2d 124, 125, '* * * there is not necessarily any relationship between the Education Law...