Philbrick v. Town of University Place

• Decision Date: 20 May 1893
• Citation: 55 N.W. 345,88 Iowa 354
• Parties: S. D. PHILBRICK et ux., Appellees, v. TOWN OF UNIVERSITY PLACE et al., Appellants
• Court: Iowa Supreme Court

55 N.W. 345

88 Iowa 354

S. D. PHILBRICK et ux., Appellees, v. TOWN OF UNIVERSITY PLACE et al., Appellants

Supreme Court of Iowa, Des Moines

May 20, 1893

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

THE town of University Place is an incorporated town, and the other defendants are the mayor and councilmen thereof. The plaintiffs are owners of what is designated as "Lot 26" in said town, it being thus designated on an official plat of the southwest quarter of section twenty-three, township seventy-nine, range twenty-four. The action is to recover damages for the destruction, by the defendants, of a certain hedge fence which the plaintiffs allege was upon their premises, but which the 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.

Reversed.

A: A Haskins and Brennan & Baily, for appellants.

Phillips & Day, for appellees.

OPINION

GRANGER, J.

What is claimed as North street is south of the plaintiff's 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 the plaintiff's premises, and to be placed one foot from the lot line. The hedge fence was of willow, which the plaintiffs were notified to remove, failing in which it was removed by the defendants. The only complaint argued by the appellant is as to instruction number 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 the appellees deals largely with facts pertaining to the acquisition of the land by the 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 instruction. The court did not determine the legality of the street,...