161 Iowa 245 | Iowa | 1913
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 eighty feet wide. It is one of the main 'traveled streets of the city. Plaintiff’s lot is. one hundred thirty-two feet long north and south and twenty-two feet wide. The building covers all but about thirty 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 half way back. Plaintiff contemplates putting in another door east of this, twenty or twenty-five 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 sis feet wide, and there was, and for fifteen 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 stairway took up so much of the sidewalk, and perhaps for other reasons, it was agreed between plaintiff and one of the eouneilmen, who was chairman of the street 'committee, that the city would remove the old posts and plaintiff would widen his walk to twelve feet and put in a cement gutter. Nothing was said
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 seventeen 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.
' Mere delay in bringing suit to enjoin a continuing nuisance is not necessarily such laches or acquiescence as to constitute an estoppel. Harley v. Merrill Brick Co., 83 Iowa, 73; 29 Cyc. 1231; 1 Am. & Eng. Enc. Law (2d Ed.) 74.
We think no such acquiescence or laches was shown as to prevent plaintiff from maintaining this action.
Counsel for appellee concede the rule to be that a citizen cannot ordinarily complain as to the general use of the public streets, but claims that, where his interest as a private citizen is also coupled with the fact that he sustains a special damage of a private nature, then such facts may be taken into consideration. This is true, as we have already indicated, in so far as plaintiff and his property áre affected differently from the general public.
It was said in Perry v. Costner, 124 Iowa, 386, 391.
But for the custom of making use of part of the streets as áreas for light and to furnish access to basements since the
The paramount object in establishing and maintaining streets is for the purpose of public travel, subject to this, they may lawfully be used for other purposes, which are conducive to the public convenience, and which tend to make 'them of greater utility and convenience to those who legally have a right to their use. Spencer v. Andrews, 82 Iowa, 14; Young v. Rothrock, 121 Iowa, 588; Sikes v. Manchester, 59 Iowa, 66; Lacy v. Oskaloosa, 143 Iowa, 704; Haight v. Keokuk, 4 Iowa, 199.
These racks are a convenience to the people who come to town on business or for social gatherings. It is a practical question for many of the towns and smaller cities of the state. The hitching posts would not be wanted perhaps on the public square, so they were placed on a side street. The city could order their removal, as was done in the Lacy case, or it can permit them to remain, provided they do not unreasonably obstruct the street or work private injury to others. It is a question of government and supervision under authority delegated by the Legislature.
As has been said in some of the cases, this power must be placed somewhere, and the Legislature has placed it in the