#### F. M. Young v. J. H. Rothrock, Judge of the Superior Court of the City of Cedar Rapids, Defendant, and F. M. Young, Appellant, v. Chadima Bros., Appellees.

•Contempt: VIOLATION OF INJUNCTION: JUSTIFICATION. The viola-1 tion of a restraining order cannot he justified in a contempt proceeding by showing that at the time the order was violated a motion to modify the same was pending.

■Same. Where an injunction directs the removal from a street of 2 an ice chute, a change in its construction and subsequent continued use is a violation of the order.

Modification of Order: mitigation. The verbal construction of 3 an injunction order by the court issuing it is not a modification or dissolution of the same but may be considered in mitigation, as may also the good faith of the party in contempt.

¡Nuisance: ice chute : authority of city.. An ice chute so 4 constructed across a street as to obstruct the travel is a nuisance and a city has no .legislative authority to grant its construction and use, nor is it justifiable on the ground of necessity.

•Nuisance: who may abate. Where it appears that plaintiff has 6 a peculiar interest in a street distinct from the general public he may maintain an action to abate a nuisance therein.

Thursday, October 29, 1903.

Original *certiorari*proceedings in this court to review the action of Hon. J. H. Rothrock, Judge, in discharging one •J. T. Chadima from a charge of contempt in violating a writ of injunction issued against him; and also an appeal from an order dissolving a temporary writ of injunction issued in the second case above entitled, of “Young, appellant vs. Chadima Bros. *”*

Reversed.

*W. E. Steele*and *John A. Reed,*for plaintiff and appellant Young.

*Redmond de Stewart*for defendant Rothrock and for appellees Chadima Bros.

*589Deeher J.

On the 23d day of December, 3901, there was issued out of (he district court of Linn county, Iowa,, in an action wherein F. M. Young was plaintiff and J. T* Ohadima was defendant, a writ of injunction restraining-the said Ohadima from maintaining, using, or operating-an obstruction in First Street West, in the city of Cedar Eapids, more particularly described as an ice chute or tramway, which ran across the street. December 28th of the same year a motion'to dissolve the injunction was heard, and it was ordered that the motion -be overruled,, and that the temporary writ be made perpetual. It was-further ordered that defendant be allowed to use the ice chutes until Monday, December 30, 1901, at twelve o’clock noon of said day, and that such use should not be a violation of said writ; and it was further ordered that at said time,, to wit, December 30, 1901, twelve noon, the defendant-should remove said obstruction from said street and sidewalk., On January 12, 1902, plaintiff filed an application charging Ohadima with violation of the- order. An attachment issued, which was duly served, and thereupon Ohadima appeared, and filed a written excuse for his alleged violation of the writ, in which he stated, in substance, that he had made application to the district court-of Linn county for a modification of the injunotional order, and asked that the proceedings for contempt be suspended. He also pleaded that he be permitted toproQeed with the operation of his ice chute until his motion could be heard. He further pleaded that the proceedings for violation of the injunction were without jurisdiction; that-he acted in good faith in operating the chute, under the authority and permission of the city council of the city of Cedar Eapids, and with the least possible obstruction to travel. On January 14, 1903, plaintiff commenced the second, action above entitled for an injunction against Chadima Bros., restraining them from operating an ice *590chute across the aforesaid First street. A temporary writ "of injunction was issued on this petition as prayed, and thereafter the defendants filed an answer to the petition, denying the alleged nuisance, pleading municipal authority,'and other matters to which we shall hereafter refer; and thereafter a motion to dissolve the temporary writ of in j unction issued in the second case as above entitled. The contempt proceedings and the motion to dissolve in the second case seem to have been tried together, resulting in the discharge of J. T. Ohadima and the sustaining of the motion to dissolve. The original *certiorari*proceeding is to review the action of the defendant judge in making the order for discharge, and the appeal in the second case is. from the ruling dissolving the temporary writ of injunction issued in that proceeding.

1. violation tiorK ^justification. There is no doubt that J. T. Ohadima violated the terms of the original writ of injunction issued by the district court of Linn county, and that he should have been punished therefor, unless it be for some matter of excuse presented by him. He says' that at the time he violated the writ he had filed a motion to modify the terms of the original order. But this is manifestly no excuse. If it were, then all that one need do who has been enjoined from the performance of a particular act is to file a motion to modify the order, and from that hour he may proceed with impunity to violate the terms of the writ. The statement of the proposition is all that-is necessary to demonstrate its unsoundness.

2. Same, Next, he contends that he complied with the injunc-tional order by changing the method of the constructon of the chutes; not that he removed them, but that he so altered their construction as that they did not interfere with public travel on the street. This view overlooks the form of the in junctional order, which restrained defendant from using or operating an ice chute in the street after December 30, 1901, and further *591■directed that the same should be removed from the street and sidewalk. A mere change in the construction of the ■chute did not amount to a removal, nor did it authorize ■Ohadima to operate it in its changed condition. He was restrained from using or operating the same on the street. The change made in the construction did not entirely obviate the dangers to be apprehended from its use, and "there is no doubt that its use, under ■ the circumtsances ■disclosed in evidence, was in violation of the' terms of the injunction.

*■3.*modifica-order°mitigation. Lastly, it is insisted that the district judge who ■ordered the original writ gave Ohadima verbal permission to make use of the street in the manner he did. All that is claimed in this connection is that the judge said that the use made of the street, if with permission 0f fjje city council, would not be contrary to the terms of the writ. No claim is made that Judge Thompson ever in fact made an order modifying his direction and order for the writ, or that he was ■even asked to do so, before Ohadima proceeded with the ■use of the ice chuté.' He was simply asked for a construction of an order which had passed beyond his control, and, •as we understand it, said that, if the city council gave ■Ohadima permission to use an ice chute across the street, it would not be a violation of the terms of the injunction. Manifestly, this would not be a legal excuse for the violation of the injunction. Such fact might, no doubt, be considered in mitigation, but it did "not amount to a dissolution or modification of the injunction, and until there was some such order it was the duty of Ohadima to obey the commands of the writ. This is fundamental. *Lanworthy v.*McKelvey, 25 Iowa, 55; *Lake v. Wolfe,*108 Iowa, 187. Chadima’s good faith is no excuse, but no doubt may be considered in fixing the penalty to be imposed for violation of the writ. *Hawkins v.*State, 126 Ind. 294 (26 N. E. Rep. 43); *Cartwright’s*Case, 114 Mass. 230; *Des*
      *592
      *Moines Co. v. Des Moines*Co., 74 Iowa, 585. The order' discharging J. T. Chadima was dearly erroneous, and the-proceedings resulting in his discharge will be annulled, and the trial court is directed to proceed as if no such order-had been made. J. T. Chadima will pay one-half of the-costs of this proceeding.

4 nuisance* authority of Clty' II. As to the second case two questions arise: First-,, was defendant maintaining a nuisance on the street by the-construction and operation of its ice chute? and, second,, plaintiff entitled to have the same en~ joined? Defendants have an icehouse oh one side of First street, and the river from which they procure their ice is on the other. To get the ice from the river into the icehouse, they constructed a chute-which ran from the river to the street line up a steep incline, from the street line across the street ón a level, and. from the icehouse side of the street to the icehouse on an incline which varied in steepness as the icehouse was; filled. As it crossed the street and sidewalk, the bottom, of the chute was sunk so that the tops of the- sides, which were about two inches deep, were practically on a level with the street and sidewalk. When the time came for-filling the icehouse, pulleys and other apparatus were-used for taking the cakes of ice from the river, where they were cut, up this chute to the house. Horses furnished the motive power, and the work was quite rapidly done. Ice was taken up as fast as possible. Indeed, one of the witnesses says that eleven loads were hauled every five minutes, and that each load averaged four cakes each forty-four inches long. The icé cakes extended above the street level something like ten inches, depending, of. course, on the thickness of the cakes. It needs no argument to demonstrate that this constituted an obstruction of the street. But, aside from this, the manner of doing the work was a constant menace to persons passing by. The danger from ice which would naturally fall upon the *593street from the chute and ■ into the chute, and from the' cakes themselves which were likely to break loose from» the jacks and rush down onto the sidewalk and into the' street, rendered the plant a public nuisance. No citation, of authorities is needed to support so plain a proposition. But it is said that, as the city authorities gave defendants permission to construct and use the chute in the manner shown, they were guilty of no actionable wrong.

Specific legislative authority to do an act will generally save the perpetrator from the charge of nuisance, although there are some exceptions to this rule, founded oni constitutional guaranties, which need not at this time be noticed. But, when legislative authority is relied upon, it must be broad enough to cover the very act complained of. If there be two methods of doing the authorized act, one of which will accomplish the result without creating a nuisance, and another which may injure persons or property, the former method must be pursued, and not the latter. It is not contended that the city was expressly authorized to permit the construction of ice chutes in the streets. Süch power, if it exists at all, arises by implication. Defendants contend that it is found in one or the other of these powers vested in the city, to wit, care, supervision, and control of streets; to make ordinances for the good government and order of the city and the trade and commerce thereof; vesting the fee of the streets in the city; io abate and remove nuisances, and to declare and define what shall be deemed nuisances; or to establish, construct and regulate landing places, wharves, etc., and to use for such purposes the shore and bank of any river — found in the gen eral statutes of the state and in the charter of the city. It is manifest, we think, that no. power is here conferred for the establishment of such a nuisance as we have described. Indeed, one of the statutes from which the defendants quote provides that the.*594city shall cause all streets to be kept open and free from nuisances. Code, section 753. While streets and alleys may be devoted to other purposes than public travel, that is the paramount object in maintaining and establishing them, and all other uses must be subordinated thereto. As said in *Town of Spencer v.*Andrew, 82 Iowa, 16, “the -city or town must keep them free from obstruction, except where the use or obstruction is such as the city or town is 'specifically empowered to and has authorized. ” There are «orne exceptions to this rule, which are born of necessity, •as most exceptions are. Thus an abutting owner may ‘temporarily encroach upon the street by the deposit of building material, may temporarily obstruct the street by •loading and unloading goods into his building or upon his property, may plant trees in the parking which do not ‘.interfere with public travel, or temporarily interfere with 'public travel in a variety of ways, without being guilty of nuisance. *Callanan v.*Gilman, 107 N. *Y.*360 (34 N. E. Rep. 264, 1 Am. St. Rep. 831); *Sikes v.*Manchester, 59 Iowa, 65; *Haight v. Keokuk,*4 Iowa, 199. But he cannot cut a ditch or a mill race across it without restoring the way to its former safe and convenient condition. *Dygert v. Schenck,*23 Wend. 446 (35 Am. Dec. 575); *Venard*v. Cross, 8 Kan. 248; *Village of West Bend v.*Mann, 59 Wis. 69 (17 N. W. Rep. 972). The construction of a permanent ice chute across a street is manifestly a nuisance. •Such an act is not authorized by the legislature, nor can .it be said to be justifiable on the ground of necessity. It is admitted that there are other methods of getting ice across the street, but it is said that they are expensive, :and for that reason this method should not be condemned. There is no merit in this claim.

*595
      5. nuisance 5>at “ay
      *594The only other point involved is the right of plaintiff to enjoin the nuisance. It is said that he has no other interest than that of the general public, and that for that reason he cannot maintain the action. It is admitted, of *595course, tbat plaintiff must show be suffers some special damage distinct from that of the general public. The fact, however, that others sustain

like damages is not controlling. The test is, does plaintiff suffer damage distinct from that of the general public? *Park v. R. R. Co.,*43 Iowa, 636. If, then, plaintiff has shown that the street which was obstructed led directly to his premises, and that the obstruction interfered with his access thereto, this is a sufficient showing of special damages to authorize him to maintain the suit. There is no difficulty with the'rule, although its application is not always easy. Plaintiff has shown that, if deprived of the use of First street, he is compelled to *go*several blocks out of his way to reach the premises owned by him, which abut on the street, and are in the same block as defendants’ icehouse, and that First street gives him the only reasonable access to his property. This is a sufficient basis for his action. *Hill v. Hoffman,*(Tenn. Ch. App.) 58 S. W. Rep. 929; *Callanan v. Gilman, supra; Dairy v. R. R. Co.,*113 Iowa, 719.

We think the lower court was in error in dissolving the temporary writ of injunction, and its. ruling is therefore REVERSED.