Smith v. City of Jefferson

• Decision Date: 02 July 1913
• Citation: 142 N.W. 220,161 Iowa 245
• Parties: SMITH v. CITY OF JEFFERSON ET AL.
• Court: Iowa Supreme Court

161 Iowa 245

142 N.W. 220

SMITH

v.CITY OF JEFFERSON ET AL.

Supreme Court of Iowa.

July 2, 1913.

Appeal from District Court, Green County; F. M. Powers, Judge.

Suit by plaintiff against defendant city and its officers to enjoin an alleged nuisance. There was a decree for plaintiff enjoining the nuisance and requiring the removal of hitching posts. Defendants appeal. Modified and affirmed.Church & McCully, of Jefferson, for appellants.

Howard & Sayers, of Jefferson, for appellee.

PRESTON, J.

Plaintiff is, and since 1905 has been, the owner of a two-story business property in said city of Jefferson, fronting east on Cherry street; the lower story used as a store, with offices above. Main street, which runs east and west, is on the south side of plaintiff's property and is 80 feet wide. It is one of the main traveled streets of the city. Plaintiff's lot is 132 feet long north and south and 22 feet wide. The building covers all but about 30 feet of the west end of the lot. The main entrance to the storeroom is at the southeast corner, and there is a side door on the south, about halfway back. Plaintiff contemplates putting in another door east of this, 20 or 25 feet from the southeast corner, as we understand, for the purpose of reaching the basement. The stairway leading to the second story is on the south side of the building and is four feet wide. Prior to the summer of 1911 the sidewalk at this point was six feet wide, and there was, and for 15 years or more there had been, a row of hitching posts and chains in the street south of the walk. As we read the record, plaintiff's building faces the southwest corner of the public square; Main street running through the city on the south side of the square and on west past plaintiff's building.

In 1911, probably because plaintiff's stairwaytook up so much of the sidewalk, and perhaps for other reasons, it was agreed between plaintiff and one of the councilmen, who was chairman of the street committee, that the city would remove the old posts and plaintiff would widen his walk to 12 feet and put in a cement gutter. Nothing was said as to whether or not the posts should be replaced. Plaintiff did build a cement walk 12 feet wide and put in a gutter 2 feet wide. He also put in a cement approach or crossing over the walk near the southwest corner of his building as an entrance to a coal chute in the west end of the building. Thirteen new hitching posts were put in, commencing one foot east of the east side of this driveway and extending east to within 28 feet of the lot line. The posts are 8 feet apart, except that at the point opposite plaintiff's south door a space of 9 feet has been left. The city contemplated connecting the posts with chains, or gas pipe, but this had not been done when the injunction was served. On the opposite side of the street there is a parking 12 feet wide, a part of the way west from Cherry street. Plaintiff complains that teams hitched to the posts are not always driven square up to them but are hitched diagonally across his coal chute crossing and the opening opposite the south door, thus interfering with his right of ingress and egress; that the city permits manure to accumulate in a ridge back of where the horses stand, causing offensive odors, particularly in hot weather; and that the vehicles extend so far into the street as to obstruct travel, and that the posts should be removed as the only way by which the nuisance may be abated. Appellant contends that the posts are not a nuisance per se; that there were hitching racks at this point when plaintiff bought his property and had been for many years prior thereto; that plaintiff has acquiesced in having the racks along said premises and is estopped from asking an injunction; that plaintiff, a private person, even though a citizen and taxpayer, cannot maintain the action as to the alleged obstruction of travel. It denies that there was any nuisance, but does not seriously object, in this court, to a decree abating the alleged nuisance as to the accumulations of manure and the interference of plaintiff's right of ingress and egress to his property. It does object to the decree requiring the removal of the posts. The trial court found that the posts as used were a nuisance and interfered with the free enjoyment of plaintiff's said premises and with the free access, ingress, and egress thereto.

[1] The temporary injunction was made permanent and the posts were ordered removed. There was a conflict in the evidence as to whether there was any unusual accumulations from the manure or offensive odors therefrom. Our conclusion is that the court was justified in finding that there was a nuisance because of this, and that there was some interference with plaintiff's right of ingress and egress to the property. But the racks are not a nuisance per se. 29 Cyc. 1175.

[2] 2. We think the trouble can be remedied without removing the posts. It will be observed that there is a space of 28 feet near the front of the storeroom east of the last post. There is no serious complaint that this is not sufficient at that place. There are no posts west of the crossing to the coal chute; this crossing is used principally, if not entirely, for hauling coal for the purpose of heating the building and probably is not so used to any considerable extent. The evidence shows that occasionally a team was hitched diagonally across this crossing, when coal was being hauled, so that the team had to be removed.

It seems to us that the removal of one post next to this crossing would obviate this difficulty so that plaintiff would not suffer any material injury. The removal of another post opposite the south door would leave a space of 17 feet, which ought to be ample space in which to back a team, to load and unload merchandise, if there were no chains across this space. The three openings mentioned will answer all requirements. The city should be required to keep the street clear of manure accumulations so as to prevent a nuisance.

3. The building on plaintiff's lot was erected 12 or 15 years ago and replaced another building. Plaintiff bought the property in August, 1905. At that time the old hitch racks were in the street substantially as are the new ones, except that they were closer to plaintiff's building. The evidence does not show that plaintiff encouraged or influenced the city to erect either the old or new racks. The old posts were removed to allow plaintiff to widen his walk. Plaintiff testifies he understood they were not to be replaced, but there was nothing said about that, and we mention it here because of appellant's claim that there was such acquiescence on plaintiff's part as to estop him from maintaining this action. Furthermore, the evidence tends to show that the nuisance caused by odors from the droppings from horses increased at about the time and after the new racks were put in....