Everett v. City of Council Bluffs

Seevers, J.

I. nuisancea tutes: miiiiictions.°oipoia The defendant is incorporated under a special charter, which provides that the city council has power “ to declare what shall be a nuisance, and to prevent, remove or abate the same.” This general grant of power, however, will not authorize the council to declare anything a nuisance which is not such at common law, or Jias been declared such by statute. Wood on Nuisances, Sec. 772. In Yates v. Milwaukee, 10 Wall., 497, Miller, J., says: “But the mere declaration by the city council that a certain structure was an encroachment or obstruction did not make it so, nor could such declaration make it a nuisance unless it in fact had that character.” In effect it was held in Bills v. Belknap, 36 Iowa, 583, that trees standing in a highway did not constitute a nuisance unless they amounted to a substantial obstruction of the highway. Substantially, this was also held in Patterson v. Vail, 43 Iowa, 412.

Under the allegations of the petition, which in the absence of any denial must be taken as true, these trees do not constitute a nuisance, and they do not constitute an obstruction to the travel along said street unless the mere fact the city council have so declared make them so. So far from being so they are both useful and ornamental. It has been the policy of the State to encourage the growth of trees outside of city limits, and the habits and customs of the inhabitants of the towns and cities of the State have been such that many of such cities and towns now have a generous supply of shade trees within their borders.

*68 2____ shade trees, *67 There is no statute declaring trees in a street or highway to be a nuisance. Nor do we believe such to be true at common *68 law. Counsel have cited us to no adjudicated case so holding. That an obstruction, whether it be a tree or some-’ thing else, in a highway or street is or may be a nuisance, there is no doubt — the statute so declares. But it must amount to an obstruction to the traveling public. ’ Under the allegations in the petition, however, we arrive at the conclusion, without serious doubt or hesitation, that the trees in question do not constitute an obstruction to such public, and therefore are not nuisances.

The ruling below is reversed and the cause remanded, with directions to grant the injunction upon such terms as are equitable.

Eeversed.