Midwest Inv. Co. v. City of Chariton

• Decision Date: 05 February 1957
• Docket Number: No. 49100,49100
• Citation: 80 N.W.2d 906,248 Iowa 407
• Parties: MIDWEST INVESTMENT CO., Appellant, v. CITY OF CHARITON, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 906

80 N.W.2d 906

248 Iowa 407

MIDWEST INVESTMENT CO., Appellant, v. CITY OF CHARITON, Iowa, Appellee.

No. 49100.

Supreme Court of Iowa.

Feb. 5, 1957.

A. V. Hass, Chariton, for appellant.

V. E. Meyer, Chariton, for appellee.

GARFIELD, Justice.

Plaintiff brought this equity suit to enjoin defendant city from removing as a nuisance a private water hydrant installed by plaintiff in the street abutting its property. By cross-petition the city asked that the hydrant be removed. In an amendment to its petition plaintiff alleged defendant had made no attempt to eliminate, but had permitted, other encroachments and obstructions in its steets and alleys and its action in seeking the removal of plaintiff's hydrant is arbitrary and discriminatory, in violation of section 1 of the Fourteenth Amendment to the Federal Constitution and section 6 of Article I, Iowa Constitution, I.C.A. Following trial to the court there was a decree for defendant from which plaintiff has appealed.

Plaintiff owns a gasoline filling station and, adjoining it, a cafe at the edge of the business district in the city of Chariton. The property is a block south of the south east corner of the city square and almost directly across the street west from the post office. Plaintiff installed a water hydrant in the sidewalk abutting its property, near the curb at the west edge of the paved roadway of the public street. The city notified plaintiff to remove the hydrant as a nuisance. Plaintiff refused and this suit followed.

The hydrant is 2 feet, 8 inches high. It has a conical metal apron 2 feet, one inch high and 2.6 feet wide at its base. There are about 8 feet of sidewalk between this base and plaintiff's east (front) lot line. From this hydrant plaintiff intended to sell water to users who would come for it in trucks to be parked adjacent to the hydrant.

The street and sidewalk at this point are heavily travelled by motor vehicles and pedestrians respectively and parking space for vehicles is not plentiful. It is difficult to alight from a car parked at the curb alongside the hydrant. They too many motorists would doubtless assume they should not park near the hydrant. Aside from the hazards and inconvenience caused by the obstruction itself it is probable there would be added danger from some escape of water, and ice forming therefrom, when water is drawn from the hydrant.

I. We are clear this hydrant is an unlawful obstruction in the public street and constitutes a nuisance. A public street includes both the roadway for vehicles and the sidewalk for pedestrians. Hall v. Town of Keota, Iowa, 79 N.W.2d 784, 786, and citations.

That the hydrant was placed in what was formerly 'the parking'--i. e., the strip of ground between the curb and the old, replaced sidewalk--when plaintiff acquired the property does not aid plaintiff. Such a strip is no less part of the public street which the city is required to keep in reasonably safe condition. Leonard v. Mel Foster, Inc., 244 Iowa 1319, 1324, 60 N.W.2d 532, 536, and citations.

Section 389.12, Code 1954, I.C.A., provides that cities and towns 'shall have the care, supervision, and control of all public * * * streets * * * and shall cause the same to be kept open and * * * free from nuisances.'

Among the acts that are deemed nuisances by Code, § 657.2, I.C.A. are: '5. The obstructing or encumbering by fences, buildings, or otherwise the public * * * streets * * *.'

That this hydrant and the proposed conducting of part of plaintiff's business in the public street constitute a nuisance see Gates v. City Council of Bloomfield, 243 Iowa 1, 11-12, 50 N.W.2d 578, 584; Cowin v. City of Waterloo, 237 Iowa 202, 209, 21 N.W.2d 705, 708, 163 A.L.R. 1327; Incorporated Town of Ackley v. Central States Electric Co., 204 Iowa 1246, 214 N.W. 879, 54 A.L.R. 474; Pugh v. City of Des Moines, 176 Iowa 593, 606, 156 N.W. 892, 896, L.R.A.1917F, 345; Lacy v. City of Oskaloosa, 143 Iowa 704, 709, 121 N.W. 542, 544, 31 L.R.A.,N.S., 853; Quinn v. Baage, 138 Iowa 426, 430, 114 N.W. 205.

We quote from two of the cited cases. Lacy v. City of Oskaloosa, supra [143 Iowa 704, 121 N.W. 544] states: '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. [Citations.]

'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. [Citations.] Nor is it any defense to such order that the obstruction is in fact a thing of public convenience or benefit. [Citations.]'.

Pugh v. City of Des Moines, supra [176 Iowa 593, 156 N.W. 896], says: 'The authorities seem uniform in holding that a person cannot carry on his business in a public street in such a way as to obstruct the street, either by placing actual physical obstructions upon it, or * * * so as to interfere with the public travel. If he does, he is chargeable as for nuisance.'

II. Apparently plaintiff's counsel would not disagree with the above views were it not for the fact the city has failed to seek removal of other obstructions to its streets. Plaintiff offered evidence of the existence of many other obstructions, such as one to three steps at the entrance to some buildings, outside stairways to second floors and advertising signs, a gasoline pump and telephone booth in 'parkings.' Containers filled will fruits and vegetables were also piled on the sidewalk against the front of two grocery stores. Presumably this last condition exists only during business hours when weather permits.

Plaintiff particularly objects that the city council permitted a bank to place in the side of its building a 'drive-in window' which protrudes into an abutting 15-foot alley about 21 inches at the top and 12 inches at the bottom. The vice president of the bank (who was also employed by one of the two grocery stores) was a member of the council and voted to permit construction of the window--the vote was unanimous.

Based on evidence of this kind plaintiff contends the hydrant does not constitute a nuisance because it says it is consistent with local usage. No Iowa decision is cited in support of this contention. Plaintiff relies mainly upon Pickrell v. Carlisle, 135 Ky. 126, 121 S.W. 1029, 24 L.R.A.,N.S., 193, in which a town was enjoined from removing as a nuisance steps to plaintiff's home which extended 3 1/2 feet onto the street. Apparently no statutory violation was there shown and it affirmatively appears the town had enacted no general ordinance prohibiting such an encroachment upon its streets. The opinion makes it clear such an ordinance would be valid. The decision is based in part on the view which then obtained in Kentucky that a lot owner may acquire by operation of the statutes of limitation a right to partially obstruct a public street. This is contrary to the rule in Iowa, Cowin v. City of Waterloo, supra, 237 Iowa 202, 211-212, 21 N.W.2d 705, 709-710, 163 A.L.R. 1327, 1333, and citations, and in every jurisdiction except perhaps Kentucky, 39 Am.Jur., Nuisances, section 201; 66 C.J.S., Nuisances, § 92. See also Annotation 152 A.L.R. 343, 358.

The case at bar is to be distinguished from Pickrell v. Carlisle, supra, in that this obstruction is a clear violation of Code, § 657.2, par. 5, I.C.A., heretofore quoted, and a general ordinance of defendant city. No question is raised as to the validity of either the statute or ordinance. This obstruction falls within the definition of a public nuisance in each enactment.

We think this dangerous obstruction in the street is a nuisance even though the city may have taken no action to remove other obstructions in its streets and in one instance permitted an obstruction in an alley.

66 C.J.S., Nuisances, § 14, says: 'A nuisance cannot be justified by the existence of other nuisances of a similar character, * * *. Custom does not justify a nuisance.'

39 Am.Jur., Nuisances, section 18, states: 'It is no justification or excuse for creating or maintaining a nuisance that * * * other persons maintain similar nuisances in the vicinity.'

A recent decision that supports those texts is Barrett v. Lopez, 57 N.M. 697, 262 P.2d 981, 44 A.L.R.2d 1377, 1381.

The effect of plaintiff's contention is that the city's failure to take action to remove other obstructions in its streets confers upon plaintiff the right to violate a valid statute and ordinance or legalizes such violation and that equity will protect him in so doing. The contention cannot be sustained.

In Society of Good Neighbors v. Van Antwerp, 324 Mich. 22, 36 N.W.2d 308, 309, plaintiff sought to enjoin city officials from interfering with its conduct of bingo games in part on the ground many other such games were permitted in the city and 'plaintiff has been singled out as the sole object of police interference.' In denying relief the opinion says, at page 310 of 36 N.W.2d: 'Nevertheless, a right to violate the law can never be conferred by laxity in its enforcement as to others. The very foundation of a court of equity is good conscience, and it will not lend its aid by way of the extraordinary writ of injunction to assist law violators. He who hath committed iniquity shall not have equity, [citation] and he who comes into equity must come with clean hands, [citation].

'We are not here concerned with other law violators. If peace officers are derelict in their duties as herein charged, we cannot adjudge that complaint within the confines of the instant case.'

Similar precedents include Eastwood Park Amusement Co. v. Stark, 325 Mich. 60, 38 N.W.2d 77, 79; Loder v. City of Canton, Ohio, Com.Pl., 111 N.E.2d 793, 796; ...