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


have since exercised the powers
granted by the statute, Code supp.
Title s, Chap g. Plaintiffs petition
sets out with much particularly the
municipal history of Oskaloosa with
reference to the establishment, main
tenance and use OF the hitching racks,
alleges that in plating the city the
county commissioners intended to ded'
icate the square and surrounding
streets as place to be used for hitch.
ing teams and that the dedication and
use of the property for that purpose
for more than sixty years cannot now
be lawfully interfered with by the city.
1t AYERS that the maintenance and use
of said racks does not constitute any
nuisance nor are they in any manner
an obstruction TO the use of the streets
but are matter of great public con.
yenience, wherefore it is demanded
that the city be permanently enjoined
from removing d destroying the racks
or changing the location thereof. An
swering the petition the defendants
admit their intention to remove the
racks, allege their right to do SO
under statute and by virtue OF the po-
lice power vested in the city and de
ny the plaintiffs claims generally.
Upon hearing the testimony onered
the trial court found for the defend,
ants, dismissed the bill and plaintiffs
appeal.
by statute the control and care
of the streets are vested exclusively
in the city and it is made its duty to
see that they are kept open and IN
repair and free from nnisances.
Code Section 1853. They have pow
er to provide market places and regu'
late the use thereof but may not levy
any toll or charge for the standing oil
teams and vehicles in such places OF
in the streets adjacent thereto on
market days and evenings previous
thereto
Code Section TT and 751. The pow
ers thus conferred are legislative IN
character and within the limits pre-
scribed by statute are plenary. The
only limit upon which the courts have
been inclined to recognize is that
they shall not be exercised unreason
ably. The wisdom of legislative act
is not matter for judicial considera
ton or review, nor viii the courts In
ouire into the necessity of change
or improvement in a public street
ordered in due form by municipal au
thority.
Miller VS. Webster City, "a iowa l62
Cherokee VS. Town Lot Co., 81 Iowa
27s,
Durham VS.. Hyde Park, IS Ill. 81.
Greencastle VS. HaZlett, % Ind. lS6
Brewster VS. Davenport, 81 Iowa Az
Seward vs. Rhemer. 43 Pac. 423,
Church VS. Baltimore, 6 Gill. 3Sl.
The statute provides that the OBJ
structing or incumbering of pubhc
roads by buildings, fences or other
wise is nuisance.
Code Section 507S, and as We have
already seen, cities are charged WITH
the duty of keeping the streets free
therefrom. The primary use or pur
pose for which streets are established
is to afford the public way of pass
age or travel and while the city Is
not under mandatory obligation &c
open up and improve streets by the
removal of natural distractions
which render them impossible, when
ever it does open and improve them
il must take care that these ways are
not obstructed or incumbered by the
unauthorized act of any person OF
persons.
A street is public way from side to
side and from end to end and any prl
waite use thereof which in any degree
detracts from binders or prevents Its
free use as a public way to its full ex
tent is within the meaning of the la"
an obstruction or incumbrance.
See Quinn VS. Baage, 1873 Iowa Al
and cases there cited.
The limited extent of the obstruct
ion is immaterial as effecting the right
of the city to remove 1t. The fact that
notwithstanding the obstruction there
is still ample room left for passage
OF teams and travellers will not ex
empt it from liability of remoVa
whenever ordered ny proper munich
pal autAorit!
Quinn VS. Baage, supra,
Philbrick VS. University Place, "
Iowa 354,
Patterson VS.. Vail, 43 Iowa 1874,
Nor is it any defense to such order
that the obstruction is in tact thing
OF public convenience of benefit.
Emerson VS. Babcock, sc Iowa 23I
State VS. Kastner, IS Iowa 22l.
The city has no power or authority
to grant any individual or any number
of individuals the right to permanently
occupy any part of street with any
structure or device for their private
use, convenience or profit. Ii may
yacate a street but 1t cannot authorize
its perversion to other or private uses
so long as it remains street. FOR
example 1t has been held in the ab'
sence OF a statute granting such au'
thority that a city cannot lawfully
permit street to be encountered by
a hack stand.
Branahan VS. Hotel Co, 80 {. st. 1873.
Platform scales for the convenience