Perry v. Castner

• Decision Date: 15 June 1904
• Citation: 124 Iowa 386,100 N.W. 84
• Parties: PERRY v. CASTNER ET AL.
• Court: Iowa Supreme Court

124 Iowa 386

100 N.W. 84

PERRY

v.CASTNER ET AL.

Supreme Court of Iowa.

June 15, 1904.

Appeal from District Court, Monroe County; C. W. Vermillion, Judge.

The plaintiff is owner of lot 5 and a strip 11 feet wide off the west side of lot 6, in block 11, in the First Survey of the city of Albia, having a north frontage on Washington street of 44 feet. Thereon is a double two-story brick building covering the ground from the street back 90 feet. The first story is divided lengthwise into two rooms, each 22 feet in width, with large show windows in front, used by tenants for display of goods and wares to attract customers and draw trade. The defendant Castner was, and the People's Savings Bank is now, the owner of the remaining 22 feet in width of lot 6, on which the former erected a two-story brick building, also running back from the street 90 feet, the lower story of which is occupied as a banking house. Washington street, with three others, forms the boundary of the public square, 412 1/2 feet square, in the center of which is located the courthouse of the county, and the outer line of these streets is the frontal line of business houses surrounding it. Immediately in front of these buildings is a sidewalk 12 feet in width to the curbstone, the remaining space being paved for public travel. During the past summer the defendants made an excavation 3 feet wide and 8 or 9 feet deep along the entire width of their building for a down stairway to the basement underneath. This open space is walled up, and is immediately north of the lot line, and in the ground set apart for the sidewalk. All of it is covered, save about 12 feet to the west. An iron railing about 3 feet high has been placed along the east end north side of the part uncovered to within 23 inches of the line of the walk in front of plaintiff's building, and defendant's stairway opening extends to within 10 inches of such line. The plaintiff alleged that this open space, with the railing and stairway, is a private as well as public nuisance; that the sidewalk is in the most publicly traveled portion of the city; that it is often crowded with pedestrians; that property about the square commands a high rental because of the location; that the down stairway, open space, and railing tend to shut out the view of plaintiff's premises which was formerly enjoyed by reason of the width of the sidewalk; that defendants now of necessity make petitioner's walk a landing for their stairway; that the passage of persons down and up the stairway over plaintiff's sidewalk, located at the landing, interferes with the free and uninterrupted use thereof by plaintiff and his tenants; that the view and prospect of plaintiff's premises is thereby obstructed, and their value is lessened, by said stairway opening and railing; that the defendants have appropriated part of the public street to their private use; and plaintiff prayed that they be restrained from using said stairway and be commanded to close the opening, and restore the sidewalk to the condition it was before removal. The defendants answered (1) by a general denial; (2) by averring that before the construction of their building Castner petitioned the mayor and city council of Albia for permission to construct the stairway, and that such permission was unanimously granted, in pursuance of which the building with the stairway as alleged was erected; (3) by alleging that plaintiff had recently constructed, and now maintains, a stairway abutting on the sidewalk of the public square similar to that complained of, and more dangerous and unsightly, and is thereby estopped from maintaining this action; and (4) that the stairway is absolutely essential to the use and enjoyment of defendants' property, and constructed according to the custom prevailing in Albia. Thereupon the plaintiff replied (1) by admitting the application to the mayor and city council as alleged, but averring the consent was not by ordinance; (2) denied the authority of the city council to permit the appropriation of any portion of the sidewalk to private use, and alleged that whatever action or authority the city council might have assumed to give was illegal, and conferred no rights on defendants; (3) admitted that he had constructed, and now maintains, a down stairway, but that it is not upon a public sidewalk of a street, and is entirely disconnected from anything involved in this action. The defendants demurred to the first two counts of the reply on the ground that the city had full authority to grant permission for the construction of the open stairway and railing as alleged, and to the third count for that plaintiff appeared to be enjoying privileges he was seeking to deny others. The demurrer to the third count was overruled, and that to the first two counts of the reply was sustained. As plaintiff elected to stand on the ruling, his petition was dismissed, and he appeals. Reversed.T. B. Perry, pro se.

LADD, J.

For the purposes of the ruling on the demurrer the allegations of the pleadings in so far as they assert the excavation of the opening in the street, the construction of the down stairway, and the railing about it, and that these occasioned injury to plaintiff distinct from that to the general public, must be accepted as true. Possibly some difficulty may be experienced in the proof, but with that we have no concern at this time. The sole question, then, is whether, conceding the facts to be as stated, the permission granted by the city council affords any defense. It may be safely laid down as a general rule that “public highways belong from side to side and from end to end to the public,” and “the public are entitled, not only to the free passage along the highway, but to a free passage along all of it not in actual use of some other traveler.” This necessarily includes not only the portion made use of by wagons, carriages, and the like, but the sidewalks as well. State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117;Scopp v. St. Louis, 117 Mo. 131, 22 S. W. 898, 20 L. R. A. 783. The consensus of judicial opinion is to the effect that any permanent encroachment on a public street which interferes or impedes its free use for travel constitutes a nuisance. Savage v. City of Salem, 23 Or. 381, 31 Pac. 832, 24 L. R. A. 787, 37 Am. St. Rep. 688. The temporary use of streets for the deposit of building material, the conveyance of goods by tradesmen, and in other ways, need only be adverted to. The necessity of such encroachments is sufficient for their justification. See note to Callanan v. Gilman, 1 Am. St. Rep. 831;Raymond v. Keseberg (Wis.) 54 N. W. 612, 22 L. R. A. 783. Even these are not to be unreasonably prolonged. But obstructions which are permanent, and interfere with the free and unimpeded use of the street, although enough space may be left for the passage of travelers, are nuisances, which may be abated. Thus a show case in front of a store, a bay window 16 feet above the sidewalk, and projecting over it 3 1/2 feet, a fruit stand encroaching on the sidewalk, a show board extending 11 1/2 inches over the sidewalk in front of a shop, a log in the street at the threshold of a gate, scales for private use in the street,...