City of McGregor v. Boyle

34 Iowa 268

• Court: Supreme Court of Iowa
• Decided: June 20, 1872
• Status: Published

Opinion

Miller, J.

The defendant does not deny any of the facts alleged in the petition. In the first and second counts of his answer he undertakes to show by the facts stated, that the city had constructed a sewer in the street in front of his property, which rendered access thereto difficult and dangerous, and he claimed the right to fill up the ditch left by the city.

The city has full control and charge of all the streets, alleys and improvements thereof, within the city limits. This is admitted by the pleadings. Having exclusive control of the streets, etc., the city council passed, as they had the power to do, an ordinance forbidding any person depositing any earth, rock, etc., in the streets without the consent of the city council. No private individual had any right to deposit any earth or other prohibited materials upon any of the streets without permission from the city council; nor any right to interfere with the improvements by the city upon its streets. The defendant does not allege in either the first or second count of his answer, that the city was negligent in the construction of the sewer, and claim damages by reason thereof. In these two counts he substantially admits that he did the acts complained of, but claims.that he had a right to do so, because the city improvement rendered access to his lot difficult and dangerous.

The city having exclusive control over the streets and alleys of the city, to grade, gutter and improve the same according to its own judgment, the defendant could not lawfully interfere to change or undo improvements made by the city authorities. The city, as a public corporation, had the right to construct the sewer in question, and, unless the work has been negligently or unskillfully performed, the defendant would have no right of action for consequential injuries to his property; but if the city authorities constructed the sewer in an unskillful or improper manner, whereby the property of the' defendant was injured, he may recover damages for injuries to his property caused by such negligence or wnskillfubness. Creal v. The City of Keokuk, 4 G. Greene, 47; Cotes & Patchen v. The City of Davenport, 9 Iowa, 227; Ellis v. Iowa City, 29 id. 229; Russell v. The City of Burlington, 30 id. 262. But while the defendant may have his action against the city for injuries to his property, resulting from the careless or unskillful construction of improvements upon the streets, yet even such carelessness or unskillfulness will not authorize the defendant to interfere with the work upon the streets. He has no such authority. The authority is vested exclusively in the city.

The improvement being authorized by law, and constructed by the agents on whom the law conferred the authority, such improvement, though carelessly or unskillfully made, did not constitute a nuisance so that the defendant could lawfully interpose and remove the same. His remedy, in case of injury to his property in consequence of such careless or unskillful construction, is by action for damages.

Tbe demurrer should have been sustained to the first and second counts of the answer, on the ground that they do not state facts constituting a defense.

II. From what has already been said as to the right of the defendant to sue the city and recover for injuries to his property, which were the results of the negligent or unskillful construction of the sewer by the city authorities, it follows that the demurrer was properly overruled as to the third count of the answer. The allegations of this court are, that, in the construction of the sewer, the city wrongfully and negligently omitted to fill up the ditch, etc., thus obstructing access to his lot, making it inconvenient and unsafe to use the same, to his damage, etc. It is not necessary that this count should allege that the city acted maliciously in the premises. It is sufficient when it alleges that the work was done in a negligent manner, and that, in consequence of such negligence, the defendant’s property has been injured.

For the errors above noticed the judgment is

Reversed.