The Oskaloosa herald. (Oskaloosa, Mahaska County, Iowa) 1885-1919, 1909-06-10

matter OF material consideration. II
! would be a source OF profit II these
merchants and dealers were allowed
to convert the sidewalk space in front
of their premises into an arcade in
(which to meet their customers and to
display and sell their goods, but no
order resolution or ordinance OF the
| council could deprive the city of its
power to revoke privilege so grant
ed. The claim made in pleading and
in argument that the right to maintain
hitching posts at this location YVES in
some way annexed TO or made con-
dition OF the dedication of the plat OF
the town is wholly without support
| in the record No such suggestion APP
pears in any writing. deed or plat
connected with the dedication. Indeed
it is more than doubtful that such re-
| served right to cucumber the street
or to exempt it from the full and COM
| plete control which the statute gives
| to the municipality over streets in
general would be of any force and val
| idity. public street to the encum-
brance of which any person may set
up a defensible claim of right is an
anomaly unknown to the statute or
| common law. A way to which any
| such condition or limitation is attach
ed is not public highway. 1t follows
| of necessity that such claim OF right
| cannot ripen into title as against the
| public By mere lapse oil time or long
continued assertion. True We have
often held and still adhere to the doc
| trine that total abandonment of a
street by the public for long period
| of time may under some circumstances
work an entire loss of its character as
a public way See Weber VS.. Iowa
| City, 119 Iowa 633, and cases there
| quoted. So too long continued re,
cognition of a given line or boundary
may under some circumstances estop
the city to insist upon some other line
as the one fixed by the original dedi-
/ cation, but we have yet to find any
precedent for the proposition so long
| as a travelled way remains a recog.
nized public street any leave or per-
mission or license to subject any por
ton of it to private use may become
| irrevocable by mere lapse of time.
| The cities of this country are a
growth of modern times. In the ear
lier and more primitive stages or
their history their streets and palT'
have been subjected to uses more or
| less inconsistent with exclusive pub.
| lie rights therein, but the conditions
then prevailing did not call for a
| strict exercise of municipal regula
| ton and control. Such uses were
pernissive only and subject to pro
hibition by the city whenever in the
| Judgment of its governing body the
council, the advancing growth and
development of the community require
| it. The testimony of a prominent
lawyer given in support OF the appel
| lant's claim in this case affords a
good illustration of the changes of a
single lifetime. In reciting his per
sonal observation of the uses to which
streets and public square were put in
the early days of Oskaloosa he tells
the court that his memory goes back
to the year 1854, when he skated upon
the public square in the winter, and
with his dog dug squirrels from Its
soil in the summer. Doubtless also
he could then have picketed his horse
in the square or turned his COW loose
upon the streets without exciting ad
verse comment, but if the same wit
ness should now relapse into the
mood of his youth and attempt a
revival of his ancient pastimes and
practices upon the field of his earlier
exploits he would hardly expect when
called before the mayor to defend his
act on the plea of prescriptive right
to so do. A place convenient and
| proper for the hitching of teams ten,
twenty or thirty years ago may cease
to be such by the growth of the city
or the course of public Improvements.
| The judgment and discretion to con
troll these things must be vested some
where and in the wisdom of the legis
lature 1t has been conferred upon the
city council This fact and the fact
that the maintenance of hitching
places in the streets IS at best a mere
license were clearly recognized by the
| appellants themselves, when with
others they APPLIED to the council in
1885 for permission to erect those now
in controversy. A permission to oc
cupy or cucumber a street for private
purpose must be considered as hay
ing been accepted with full knowledge
that the city is without power to con,
| fer a permanent right or privilege OF
that nature. Says the Illinois court
| THE municipality having no power to
| grant such permanent use there can
be no estoppal against it from re
| quiring the street to be open in its
entirety, because no estoppal can
| arise from an act of the municipal
authorities done without authority OF
law"
! Snyder VS.. Mt. Pulaski, 176 Ill. 397
! Counsel argue with much earnest
ness that before the city council may
| lawfully order the removal it must
first find that the hitching racks are
nuisance and this it is said has been
negatived by proof that the street at
1 THE location lie liant raacnna hIu claan