Mettler v. City of Ottumwa, 36172.

• Decision Date: 05 February 1924
• Docket Number: No. 36172.,36172.
• Citation: 197 Iowa 187,196 N.W. 1000
• Parties: METTLER ET AL. v. CITY OF OTTUMWA.
• Court: Iowa Supreme Court

197 Iowa 187

196 N.W. 1000

METTLER ET AL.

v.CITY OF OTTUMWA.

No. 36172.

Supreme Court of Iowa.

Feb. 5, 1924.

Appeal from District Court, Wapello County; W. M. Walker, Judge.

Action in equity to restrain the defendant city from closing an areaway from the street into the basement of an office building owned by plaintiff. Judgment and decree dismissing plaintiff's petition, and he appeals. Affirmed.L. L. Duke, and Roberts, Webber & Roberts, all of Ottumwa, for appellants.

Wm. A. Hunt, of Ottumwa, for appellee.

STEVENS, J.

This is an action in equity to permanently enjoin appellee from causing an areaway occupying a portion of a public street in said city, and used in connection with a large six-story bank and office building, to be closed. The basement of the said building is occupied as a barber shop, and the areaway provides the only means of public access thereto. The areaway, which is 4 feet 1 inch in width, including a railing on the outside thereof, and 25 feet 5 inches in length, was constructed in 1905 with the permission of the city council, granted upon the petition of appellant, under authority conferred by the ordinances of said city. At the time permission was granted appellant to construct said areaway in the street, the bank and office building was in process of construction. The ordinances then in force in said city authorized the city council to grant permission to property owners to erect areaways and stairways, but provided that--

“The privilege to erect and use areas or stairways shall be limited to any terms of years the council may deem best, and the right to remove such area or stairway, at the expense of the individuals erecting them, shall be reserved to the city, at the expiration of the time for which such privilege was granted, and, if no time is fixed, then by giving six months' notice.”

Upon the filing of appellant's petition, a committee of the council was duly appointed, and on March 17th reported, recommending that the petition be granted, subject to the right of appellee to revoke said permission, and to cause the opening to be closed upon first giving six months' notice to appellant of the city's intention to revoke the permission granted and to close the opening of the street. The recommendation of the council was approved.

On the 26th day of June, 1922, the city council passed a resolution ordering the areaway removed, and the opening closed, and providing for a six months' notice to appellant, which was duly given. On April 13, 1923, a further resolution was adopted by the city council, giving appellant 10 days' notice in which to comply with the prior notice. Appellant failing to comply therewith, an April 23d the council ordered the opening closed, and that same be covered with concrete, the work to be done under the direction and supervision of the city engineer. This action was commenced December 22, 1922, and on the same day a temporary writ was issued, which, upon final hearing, was dissolved.

[1][2] The Legislature of this state has confided the control and supervision of all streets of cities and towns to the councils thereof, and made it their duty to maintain the same free from nuisances and obstructions. Sections 751, 753, 792, Code 1897; Quinn v. Baage, 138 Iowa, 426, 114 N. W. 205;Perry v. Castner, 124 Iowa, 386, 100 N. W. 84, 66 L. R. A. 160, 2 Ann. Cas. 363;Lacy v. City of Oskaloosa, 143 Iowa, 704, 121 N. W. 542, 31 L. R. A. (N. S.) 853;Kemp v. City of Des Moines, 125 Iowa, 640, 101 N. W. 474;Emerson v. Babcock, 66 Iowa, 257, 23 N. W. 656, 55 Am. Rep. 273;Callahan v. City, 170 Iowa, 719, 153 N. W. 188, L. R. A. 1916B, 927;Central Life Assur. Soc. v. City of Des Moines, 185 Iowa, 573, 171 N. W. 31;Davis v. City of Clinton, 50 Iowa, 585. The power thus conferred extends to areaways and other obstructions upon the streets. Callahan v. City, supra; Central Life Assur. Soc. v. City of Des Moines, supra; Bennett v. Mt. Vernon, 124 Iowa, 537, 100 N. W. 349; Emerson v. Babcock, supra. Permission granted to the owner of private property to use a portion of the street for an areaway may be revoked at any time in the sound discretion of the council. Callahan v. City, supra; Young v. Rothrock, 121 Iowa, 588, 96 N. W. 1105; Perry v. Castner, supra; Emerson v. Babcock, supra; Lacy v. City of Oskaloosa, supra; City of Cedar Rapids v. Young, 119 Iowa, 552, 93 N. W. 567.

[3][4] The fee title to the streets is in the incorporated town or city, and no private person has a vested or inherent right to obstruct the same in the conduct of his private business. The right to the use of the streets is given alike to all citizens, and includes the full width and length thereof. Quinn v. Baage, supra.

The opening in the sidewalk adjoining appellant's building, as stated above, occupies a space 4 feet 1 inch in width and 25 feet in length. Appellant's building abuts upon Main and Market streets, which, the evidence shows, is one of the busiest and most congested corners in said city. The...