Emerson v. Babcock

23 N.W. 656, 66 Iowa 257

• Court: Supreme Court of Iowa
• Decided: June 3, 1885
• Status: Published

Opinion

Nothrock, J.

It is averred in the petition that “ said scales are not and never have been an obstruction to said street in any particular, neither have they been so declared by any court, but, on the contrary, plaintiff' avers that they have always been a great benefit to the public, and that they were put in said place at the first laying out of said town. Plaintiff states further that said order (the order of removal) was procured through the hatred, ill-will and malice of designing men, for the purpose of liarrassing and injuring him in his business, and for no other purpose.” The demurrer was upon the ground that the facts pleaded do not entitle plaintiff to any relief.

It appears from an exhibit attached to the petition that the town council passed an ordinance requiring the removal “of any platform scales standing on or occupying a portion of the land set apart as a public thoroughfare, known as Decatur street,” in said town, and it sufficiently appears from the petition and exhibit that plaintiff’s scales are located on Decatur street. Section 1089 of the Code provides that “ the obstructing or incumbering by fences, buildings, or otherwise, the public highways, private ways, streets, alleys, commons, landing-plaees, or burying grounds, are nuisances;” and, by section 456 of tbe Code, the town council has power to cause any nuisance to be abated.

The fee title of the streets is in the incorporated town, and no private person has any legal right to erect any structure therein for the purpose of carrying on his private business; and if, having done- so, he is required to remove his building or structure, of whatever it may be, from the street, he has no cause of complaint. He is deprived of no right. If the plaintiff was permitted to maintain his scales in the street for a time, the privilege must be regarded as a mere license which may be terminated at any time, and it is immaterial whether the erection in the street amounts to a nusiance. It is the duty of the town authorities to keep the streets clear and unobstructed, and no person has the right to take and hold possession of any part of the streets for any private purpose.

It is true that in the case of Everett v. City of Council Bluffs, 46 Iowa, 66, this court held that shade trees growing in a street or highway do not constitute a nuisance, unless they are an obstruction to public travel. The trees in question in that case were within the curbing of the sidewalk of the street. That decision was based largely upon the consideration that shade trees at proper places upon the edge of the streets of cities and towns are a public benefit, and no detriment to any public interest. The maintenance of any structure in a street for the purpose of carrying on a business occupation presents quite a different question.

¥e think the demurrer to the petition was properly sustained.

Aeeirmed.