Philbrick v. Town of Univ. Place

• Decision Date: 20 May 1893
• Citation: 55 N.W. 345,88 Iowa 354
• Parties: PHILBRICK ET UX. v. TOWN OF UNIVERSITY PLACE ET AL.
• Court: Iowa Supreme Court

88 Iowa 354

55 N.W. 345

PHILBRICK ET UX.

v.TOWN OF UNIVERSITY PLACE ET AL.

Supreme Court of Iowa.

May 20, 1893.

Appeal from district court, Polk county; C. P. Holmes, Judge.

The town of University Place is an incorporated town, and the other defendants are the mayor and councilmen thereof. Plaintiffs are owners of what is designated as “Lot 26” in said town, it being thus designated on an official plat of the S. W. 1/4 of section 23, township 79, range 24. The action is to recover damages for the destruction, by defendants, of a certain hedge fence which plaintiffs allege was upon their premises, but which defendants claim was in one of the public highways of said town, known as “North Street.” The jury returned a verdict for the plaintiffs, and from a judgment thereon the defendants appeal.A. A. Haskins and Brennan & Baily, for appellants.

Phillips & Day and W. B. Crosby, for appellees.

GRANGER, J.

What is claimed as North street is south of plaintiffs' premises, and they abut thereon. The hedge fence was in what is claimed to be North street. The defendant town ordered a sidewalk built along the street adjacent to plaintiffs' premises, and to be placed one foot from the lot line. The hedge fence was of willow, which plaintiffs were notified to remove, failing in which it was removed by defendants. The only complaint argued by appellant is as to instruction No. 6 given by the court, as follows: “(6) If you shall find by a preponderance of the evidence in this case that the land on which the hedge in controversy stood was within one of the streets or highways of said defendant town, and that said hedge was not a material obstruction to the free and unobstructed use and enjoyment of said street or highway by the public for the purposes of travel thereon by teams and foot passengers, and that said hedge was by authority of the defendant town cut down, without consent of the plaintiffs, then owning said land, you should return your verdict for the plaintiffs for their damages, the amount of which should be determined as directed in the last preceding instruction.” The complaint as to the instruction is that it directs a verdict for the plaintiffs if the hedge fence was within the street of the town, provided, it was not a substantial obstruction to the free and unobstructed use and enjoyment of said street or highway by the public. It is insisted that the instruction is erroneous because of the language of the proviso. The argument by appellees deals largely with facts pertaining to the acquisition of the land by plaintiffs, its situation before and since such acquisition, the planting of the hedge, and the fact as to the street in question being a legal one. It seems to us these questions are not important in the determination of the correctness of the...