Miller v. City of Webster City
| Decision Date | 04 April 1895 |
| Citation | 62 N.W. 648,94 Iowa 162 |
| Parties | MILLER v. CITY OF WEBSTER CITY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Hamilton county; J. L. Stevens, Judge.
Suit in equity to enjoin a nuisance alleged to have been created by defendant in establishing a place called “Market Square” within the city, whereat hogs, cattle, grain, and produce were kept and sold, and for other relief. Defendant was enjoined from using the place unless it removed the excrement deposited by the live stock daily, and otherwise the relief prayed for was denied. Plaintiff appeals. Affirmed.Hyatt & Hyatt and Wesley Martin, for appellant.
George Wambach and D. C. Chase, for appellee.
Plaintiff is the owner of lots 1 and 2 in block 73 in the defendant city, which he has occupied, improved, and used as a residence property since the year 1882. Block 72 lies directly south of, and in front of, plaintiff's residence, and at the time plaintiff purchased his property it was vacant. In the year 1889 the defendant purchased block 72, and established it as a market place, locating the city scales thereon. The plaintiff charges that the city, since its purchase, has erected stock yards or small inclosures thereon, in which are kept large numbers of hogs and cattle, and that it allows excrement and other filth to accumulate and decay thereat; that said grounds are flat, and wholly without drainage, and that, by reason of the use of the property and its situation, noisome and offensive smells emanate therefrom, which corrupt and infect the air in and about plaintiff's house, threatening the health of his family, and seriously interfering with the comfortable enjoyment of his property, rendering the same worthless and dangerous to use during the greater portion of the year; that the erection and maintenance of the yards are wholly unnecessary for the public good or convenience; and that other and more suitable grounds can be obtained without expense elsewhere. Plaintiff further charges that in the year 1889 the defendant erected, and still maintains, a row of hitching posts on the north side of block 72, and directly in front of plaintiff's house, where large numbers of teams are allowed to stand daily and deposit excrement, which is allowed to accumulate and remain upon the street, creating foul and unhealthy odors, greatly injuring and interfering with plaintiff's enjoyment of his property. An injunction is asked against the further maintenance of the stock yards and the hitching posts. The defendant claims to have established a market place and located the city scales on block 72 under and by virtue of an ordinance regularly passed by its city council, and alleges that the same was done with the knowledge and acquiescence of the plaintiff. It further says that live stock is brought upon the property for weighing and selling purposes only, and allowed to remain but for a reasonable length of time for these purposes; that the premises are at all times kept free and clean from anything offensive to the senses, or injurious to the health of the public, or those who reside in the immediate vicinity. It avers that it has erected the hitching posts complained of to meet a public demand, and that these posts in no manner interfere with public travel, or with plaintiff's free access to and from his lots, or with the free use of his lots. It further claims that the use of the hitching posts is necessary to the conduct of the market place, and that it does not permit their use for unlawful purposes. The district court enjoined the use of the yards without daily cleaning by removing the excrement deposited by animals there confined, and denied plaintiff all other relief, and plaintiff appeals.
1. It is contended on behalf of appellant that there is no necessity for a market place, with scales and yards, where it now exists; that there were ample facilities for weighing and handling stock and other property brought to the city for market, before the establishment of the market place; and that there are other places, much more convenient, where it might have been located. It is provided by statute (Code, § 456) that cities and towns “shall have power * * * to establish and regulate markets; to provide for the measuring or weighing of hay, coal, or any other article of sale.” Pursuant to this power the city, through its council, established a market place upon the property in question, and located the city scales thereat; appointed a weighmaster; and required all persons having any commodity to buy or sell by weight, where the quantity exceeded...
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