Iowa Supreme Court interprets “satisfaction” to the satisfaction of county

Gary Taylor

by Gary Taylor

McNeal v. Wapello County

Iowa Supreme Court, February 3, 2023

The McNeals were operating a vehicle repair and salvage business on property in Wapello County zoned R-1 Residential. For our purposes it’s not necessary to go too far into the history of the dispute between the McNeals and the county over the condition of the property; it is sufficient to know that in April 2019 the parties entered into a settlement agreement that, in part, included the following provisions:

1. The McNeals have 90 days from April 1, 2019 to clean the Property including the removal of debris and derelict vehicles and begin repairs on the residence . . . .

2. Forty-five days after April 1, 2019, (May 16, 2019) the McNeals grant to the County the right to enter onto the Property and to determine what remaining debris, derelict vehicles, or repairs need to be completed. The County will then notify the McNeals of the additional work which needs to be completed within the 90 day period.

3. If the removal of debris, derelict vehicles, and maintenance of the Property has not been completed to the satisfaction of the County by the end of the 90th day (June 30, 2019), then the McNeals grant unto the County the right for the County and/or its agents to enter onto the Property and to remove all remaining debris, derelict vehicles, and unrepaired structures. The County’s cost in removing such debris, derelict vehicles, or structures will be assessed against the Property ….

4. . . . Other than the procedure set forth in this Settlement Agreement, the McNeals waive and release any other statutory or common law right to challenge the County’s right to enter the Property and to conduct clean up activities, including any rights against the County’s employees, elected officials, or agents….

6. This Agreement is the entire agreement between the Parties and supersedes all prior discussions, understandings or representations. It may not be modified or amended, nor any waiver of its provisions, except by a written instrument executed by the parties.

emphasis added in Paragraph 3

When the county zoning administrator entered the property on May 19 no cleanup work had been done. He sent a letter to the McNeals on May 21 documenting this fact. On August 5, after the ninety-day period referenced in Paragraph 3 of the settlement agreement, plus another thirty-five days, had passed, the county entered the property and removed a large number of items. This included sixteen vehicles, none of which displayed any indication of being licensed. The county sent the McNeals a letter on August 27 advising them that they could retrieve any of the vehicles by providing an indication of title and paying the towing and storage fees, but none could be returned to the same property. The letter also stated that the vehicles would be destroyed if not retrieved within 10 days.

The McNeals filed suit in district court against the county on September 6, claiming that the county’s actions constituted a breach of the settlement agreement. At a hearing on motions filed by bother parties the dispute was determined to be centered on Paragraph 3 of the settlement agreement; specifically on what the term “derelict” meant for purposes of the agreement. The county argued that the language of Paragraph 3 gave the county sole discretion to determine whether the vehicles were “derelict,” while the McNeals disagreed, and countered that there were genuine issues of fact about whether the vehicles were, in fact, derelict. After some actions at the district court and the Court of Appeals that you probably don’t care about, the Iowa Supreme Court took up the case and issued this opinion.

The court stated the issue as primarily an interpretation of Paragraph 3: “What does it mean to say that ‘the removal of debris, derelict vehicles, and maintenance of the Property has not been completed to the satisfaction of the county'”? The county argued, first, that “to the satisfaction of the county” means what it says; that is, it is within the county’s sole discretion to determine whether vehicles were “derelict.” Second, that Paragraph 2 giving the County “the right to enter onto the Property and to determine what remaining debris, derelict vehicles, or repairs need to be completed” affirms this. Third, that to decide otherwise would, in effect, render the “settlement” meaningless as it would give the McNeals the right to essentially relitigate the case over whether the county had the right to remove the items on the property. The McNeals, of course, disagreed with the county’s characterization of the agreement’s provisions.

The Court noted that, absent a phrase in the agreement such as “as determined by the County in its sole discretion,” the relevant inquiry should be “whether a reasonable person in the position of the county would be satisfied” that the McNeals had carried out its obligations under the agreement. The Court concluded that it was reasonable for the county to determine on August 5 that all the vehicles in question were derelict and should be removed. None had current licensure, most were decades old, most if not all were unable to be driven, and a few even lacked VINs. The McNeals had done nothing to clean up the property since the agreement was reached, and offered no proof, either to the county or during the court proceedings, that any of the vehicles were in good, running condition. While the McNeals argued that all the cars had “productive value” because they were salvaged for parts and therefore didn’t require removal, the Court said this was immaterial. A party’s “undisclosed, unilateral intent” in signing a settlement agreement doesn’t matter. A reasonable person could still view a vehicle as derelict even if it had salvage value.

In sum, the Court concluded that the terms of the agreement required the county to act reasonably in determining whether the vehicles were derelict, and that it had done so.

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Seventh Circuit follows SCOTUS lead, upholds validity of distinction between on- and off-premises signs

Gary Taylor

by Gary Taylor

Adams Outdoor Advertising v. City of Madison, Wisconsin
Seventh Circuit Court of Appeals, January 4, 2023

Adams Outdoor Advertising (AOA) owns billboards throughout the Midwest, including 90 in Madison, Wisconsin. Like a majority of cities Madison adopted a sign ordinance to promote traffic safety and aesthetics. It comprehensively regulates “advertising signs,” which is defined under the ordinance as any sign advertising or directing attention to a business, service, or product offered offsite; in other words, a sign that advertises something unrelated to the premises on which the sign sits. The construction of new advertising signs has been banned under the Madison ordinance since 1989. Existing advertising signs were allowed to remain but cannot be modified or reconstructed without a permit and are subject to size, height, setback, and other restrictions. In 2009, Madison amended its sign ordinance to prohibit digital displays. In 2017, the definition of “advertising sign” was amended to remove references to noncommercial speech. Several of these amendments spurred lawsuits against Madison by AOA which are not relevant to the present case. As the ordinance now stands, the term “advertising sign” is limited to off-premises signs bearing commercial messages.

AOA initiated the present litigation based on the U.S. Supreme Court’s 2015 decision in Reed v. Town of Gilbert. Although the distinction between on-premises and off-premises signs was not at issue in Reed, AOA argued that, under Reed, any ordinance treating off-premises signs less favorably than other signs is a content-based restriction on speech and thus is unconstitutional unless it passes the high bar of strict scrutiny. The district court disagreed and applied intermediate scrutiny. Relying on the Fifth Circuit case of Reagan National Advertising v. City of Austin AOA appealed the district court ruling. When the U.S. Supreme Court agreed to take up the Austin case the Seventh Circuit delayed ruling on the AOA v. Madison case pending the outcome of Austin. As readers of this blog know, the U.S. Supreme Court used the Austin decision to clarify that nothing in Reed altered its earlier precedents applying intermediate scrutiny to billboard ordinances and upholding on-/off-premises sign distinctions as ordinary content-neutral “time, place, or manner” speech restrictions.

For time, place, and manner restrictions to be valid they need only be narrowly tailored to serve a significant governmental interest.” It has been established through countless cases that traffic safety and visual aesthetics are significant governmental interests. AOA nonetheless argued that the Madison ordinance failed intermediate scrutiny because the city failed to provide empirical evidence linking billboards to aesthetic or safety-related harms. Citing earlier precedent, the Seventh Circuit stated that “billboards, by their very nature…can be perceived as an esthetic harm” and the city “need not try to prove that its aesthetic judgments are right.” Likewise, the connection between billboards and traffic safety is too obvious to require empirical proof. “It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it.”

The Seventh Circuit affirmed the district court’s dismissal of AOA’s claim.

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Declaratory judgment not appropriate avenue to appeal rezoning decision. Landowner gets second bite at appeal anyway.

Gary Taylor 1 Comment

By Gary Taylor

Dyersville Ready Mix, Inc., dba BARD Materials v. Iowa County (WI) Board of Supervisors and Iowa County Planning and Zoning Committee

Wisconsin Court of Appeals, October 20, 2022

In October 2019, BARD submitted an application to the Iowa County Planning and Zoning Committee, seeking to rezone its property from A-1 Agricultural to AB-1 Agri-Business to allow BARD to apply for a conditional use permit to convert its property from preserved agricultural land to a quarry.  The Town Board voted to oppose BARD’s rezoning application because it was inconsistent with its comprehensive plan. The Iowa County Planning and Zoning Committee then voted to recommend denial of the application for the same reason. The Iowa County Board ultimately voted to deny BARD’s application. [Note: this sequence of events doesn’t make sense to me, but I’m just repeating what I read].  BARD then commenced this action challenging the denial of its application. BARD labelled its action, and specifically sought, a declaratory judgment, arguing that, as a matter of law, it was entitled to the rezoning because it satisfied all of the criteria for rezoning its property. The Town moved for judgment on the pleadings, and the County moved to dismiss for failure to state a claim, arguing that declaratory judgment was not the appropriate remedy. They argued, among other things, that BARD’s exclusive remedy to challenge the denial of its rezoning application was by certiorari. The circuit court denied both motions. The parties then filed competing motions for summary judgment.  The circuit court granted summary judgment to BARD and issued a declaratory judgment that Bard is entitled to rezoning of its property as a matter of law. The Town and the County appealed.

The Town and County contended that certiorari is the exclusive remedy for review of a rezoning decision because rezoning is a legislative act and, according to the 2018 Wisconsin Supreme Court case of Voters with Facts v. City of Eau Claire, declaratory judgment is not a proper method for reviewing municipal legislative decisions.  BARD countered that “[t]ime and again, courts have entertained challenges to rezon[ing] decisions pleaded as claims for declaratory judgment” and provided a list of cases that it asserted adjudicated a rezoning decision through an action for declaratory judgment.  BARD also asserted that “general principles concerning review of legislative actions apply with ‘considerably lesser force’ to rezoning denials.” 

The Court of Appeals, however, was not persuaded.  “[BARD] does not explain why any of [the cases listed by BARD] control over the specific holding in Voters with Facts that certiorari review, rather than declaratory judgment, is the proper means to seek review of a municipal legislative determination. That is, BARD does not contend that any of the cases it cites addressed the legal question which was squarely addressed and answered in Voters with Facts.”  The Court noted with approval the observation in Voters with Facts that “declaratory relief is disfavored if there is a speedy, effective and adequate alternative remedy.” In this case, certiorari is available and therefore, is the exclusive method of review.

BARD argued alternatively that its complaint did, in fact, state a claim for certiorari review because it raised the questions, appropriate for such review, of whether the county’s actions were arbitrary or unreasonable.  The Court of Appeals did bite on this theory, concluding that BARD’s claims fit within the scope of, and therefore could be construed as a request for certiorari review.  The Court of Appeals remanded the case to circuit court because it was tried as a declaratory judgment action, and the record was therefore insufficient to enable certiorari review. 

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Appeal filed in Michigan drone case

Gary Taylor

An update: The Maxons have filed an appeal in the Michigan Supreme Court seeking to overturn this decision. The Institute for Justice is backing the Maxons. The IJ attorney states that “Americans have a right to be secure in their homes and backyards without being watched by a government drone.” The Michigan Court of Appeals decided that even if the drone flights violated the Maxons’ Fourth Amendment rights, the government should still be allowed to use the evidence obtained from the unconstitutional search in court because the Fourth Amendment’s protection applies to criminal prosecutions and does not apply to civil code enforcement proceedings.

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Solar debate heats up in Linn County

Gary Taylor

The Linn County Board of Supervisors voted in a moratorium on accepting rezoning applications for the county’s Renewable Energy Overlay District to allow planning staff to study the ordinance in light of recent applications. The moratorium is in place initially for three months, but can be extended to a maximum of twelve months.

On a related note, residents near two utility-scale solar projects are suing the Linn County supervisors, challenging the supervisors’ zoning decision that will allow construction of the facilities. The residents argue that the rezonings under the Renewable Energy Overlay District constitute spot zoning.

What is spot zoning? Well, since you asked you can click on the drop down “Categories” menu to the right and find cases from Iowa and beyond that address spot zoning.

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Into the weeds of the National Trails System Act. (That rail trail you like to ride may have a long legal history)

Gary Taylor

by Gary Taylor

Memmer v. United States

United States Court of Appeals for the Federal Circuit, September 28, 2022

This case originated in the United States Court of Federal Claims (Why?  Read this) when Jeffrey Memmer and eleven other Indiana landowners (landowners) brought suit seeking compensation for an alleged taking arising from the application of the National Trails System Act (NTSA) to the abandonment of railway easements by Indiana Southwestern Railway Company.  Landowners claimed they held reversionary interests in the property which were “taken” under the NTSA.  It’s complicated.  Bear with me.

The Surface Transportation Board (STB) has authority to regulate the construction, operation, and abandonment of most rail lines in the United States.  A rail carrier must either file an application with, or seek exemption from, the STB if it intends to abandon or discontinue a rail line.  At the same time, the NTSA allows a rail carrier to instead negotiate an agreement with a locality or a private trail sponsor to convert the railroad’s right-of-way into a recreational trail.  If a rail carrier agrees to negotiate an agreement with a trail sponsor, the STB will issue a Notice of Interim Trail Use or Abandonment (NITU). The NITU provides for a negotiation period during which the railroad can discontinue service on the rail line and salvage track and materials.   If no agreement is reached with a locality or trail sponsor during the negotiation period the railroad may file a notice of consummation of abandonment with the STB, thus abandoning the line.  If an agreement is reached, however, trail use of the right-of-way is authorized and abandonment by the railroad is blocked indefinitely, subject to restoration of the right-of-way for railway purposes.  Because it is possible to again put the right-of-way to use as a railway, the NTSA process is known as “railbanking.”

Another possibility is that after an application for abandonment is filed with the STB another party may make an Offer of Financial Assistance (OFA) to subsidize the operation of the rail line to keep it open.  This could be a local government, for example, or an entity such as a grain elevator that makes consistent use of the line.  If an OFA is proffered those negotiations take precedence over any proposed or ongoing negotiations with a trail sponsor.

It is possible that the railbanking process and conversion of property to use as a recreational trail can result in a takings claim.  It depends on state property law of the state in which the line is situated.  A taking occurs when state law reversionary property interests that would otherwise vest in the adjacent landowners are blocked from so vesting by the NTSA.  In other words, state property law in some states is interpreted to automatically revert the right-of-way to adjacent landowners, while in other states no such reversionary right exists. 

In the present case, Indiana Southwestern submitted a notice of exemption from abandonment proceedings on October 25, 2010, stating that it would consummate abandonment of its rail lines on or after January 15, 2011. In response, the STB published a notice on November 12, 2010 stating that the deadline for railbanking requests was ten days later, on November 22, 2010, and that absent third party intervention, Indiana Southwestern could abandon the lines on December 14, 2010.  The notice indicated that Indiana Southwestern was given until November 12, 2011, to file a notice of consummation of abandonment, if it chose to do so.  A few days after the STB’s notice was published, the Indiana Trails Fund (Fund) submitted a request for the Board to issue a NITU for the rail corridor to permit negotiations with Indiana Southwestern about railbanking. The STB also received notice from the Town of Poseyville, Indiana of its intent to file an OFA, which took precedence over the Fund’s request.  After several months of negotiations with the Town, the Town’s offer fell through.  An NITU was then issued that became effective May 23, 2011, and the Fund and Indiana Southwestern proceeded to negotiate.  Ultimately they failed to execute a trail-use agreement, even after four extensions of the NITU.  The final NITU deadline lapsed on November 8, 2013; however, Indiana Southwestern chose not to consummate the abandonment of the rail line at that time. In the meantime while the NITU was pending, Indiana Southwestern executed a contract with A&K Materials (A&K) to purchase and remove the rails on the rail line except those in rail crossings and move the ties from the center of the rail line. A&K completed its work by early February of 2012.

 Indiana Southwestern did eventually submit a new notice of exemption to start the process over in 2021.  No potential trail sponsors came forward, and no NITU issued, so Indiana Southwestern consummated the abandonment of the line on August 31, 2021.  As a result, the landowners’ fee simple interests became unencumbered by any railway easements on that date. 

While all this was going on, litigation ensued (which presumably why you are still reading this post).  The landowners claimed that a permanent categorical taking occurred with the issuance of the first NITU, because the evidence was that Indiana Southwestern would have abandoned the line absent the NSTA-mandated NITU; that evidence being that no rail traffic had moved over the line for at least two years and that they hired A&K to remove the rails regardless of the outcome of negotiations.  The federal government countered by arguing that there was no government action resulting in a change to the landowners property interests “when a railroad requests abandonment authority (from the STB) and then chooses not to exercise that authority.” 

The Federal Circuit Court of Appeals disagreed with the government that a physical taking cannot occur when a NITU ends without either a trail-use agreement or the consummation of the railroad’s abandonment:

The NITU in this case, as in similar cases, was a government action that compelled continuation of an easement for a time; it did so intentionally and with specific identification of the land at issue; and it did so solely for the purpose of seeking to arrange, without the landowner’s consent, to continue the easement for still longer, indeed indefinitely, by an actual trail conversion….Thus, once initiated, a NITU can effect a “mandated continuation” of an easement by the STB that  provides a right of occupation by someone other than the landowner.

Memmer v. US, slip opinion p. 15

The Court then addressed the duration of the physical taking.  The Landowners argued that the temporary taking lasted from May 23, 2011 (the issuance of the first NITU) until August 31, 2021 (when the rail line was finally abandoned) because the requirements for abandonment under Indiana law were satisfied when the railroad removed the rails, yet their reversionary rights were still blocked until the railroad consummated the abandonment.  The government argued that the taking ended upon expiration of the NITU (and its extensions) on November 8, 2013 because it was on that date that the United States was no longer responsible for mandating the continuation of the easement.

The Court agreed with the government’s position because, from November 8, 2013 forward the decision rested solely in the hands of Indiana Southwestern.  “A takings claim must be predicated on actions undertaken by the United States….It is always the railroad’s choice that ultimately impacts the duration of the taking….Moreover, acceptance of [landowners’] argument would effectively contradict the STB’s authority to regulate abandonment which Congress granted over one hundred years ago.”

The Court remanded the case to the Court of Federal Claims for a determination of the compensation and interest due to the landowners as a result of the temporary taking of their property from May 23, 2011 to November 8, 2013. 

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Township drone photos used to support zoning code violation are admissible

Gary Taylor

by Gary Taylor

Long Lake Township v. Todd and Heather Maxon

Michigan Court of Appeals, September 15, 2022 (published opinion)

In 2007 Long Lake Township brought a zoning action against Todd Maxon arising from his storage of junked cars on his property. The case was settled in 2008 when Maxon agreed to maintain the status quo – no more junked cars on his property than existed at the time of the settlement.

In subsequent years the neighbors complained that the Maxons had expanded their junk yard, but this could not be confirmed from ground level because buildings and trees obstructed views of the property. The township hired Zero Gravity Ariel to take areal photos of the property with a drone in 2010, 2016, 2017, and 2018. The photos allegedly show that the number of junked cars had increased considerably since the settlement agreement, so the township filed an abatement action against the Maxons. Invoking the Fourth Amendment, the Maxons filed a motion to suppress the drone photos. The trial court denied the motion holding that the drone surveillance was not a “search” within the meaning of the Fourth Amendment. After more trips up and down the appellate ladder than are necessary to review here, the Michigan Supreme Court remanded the case to the Michigan Court of Appeals to consider the legal question of “whether the exclusionary rule applies to this dispute” considering no past precedent has extended the application of the exclusionary rule beyond criminal proceedings.

The Court of Appeals began by noting that the U.S. Supreme Court has repeatedly rejected the application of the exclusionary rule in civil cases, explaining that the purpose of the exclusionary rule is twofold: to deter police misconduct, and to provide a remedy where no other remedy is available. The Michigan Court of Appeals concluded after a thorough review of U.S. Supreme Court caselaw that the only application of the exclusionary rule to civil cases under the Fourth Amendment to the U.S. Constitution is in civil forfeiture actions “when the thing being forfeited as a result of criminal prosecution is worth more than the criminal fine that might be assessed.”

Turning to Michigan law the Court of Appeals notes that Article 1, Section 11 of the Michigan Constitution specifically constrains the application of the exclusionary rule, and Michigan courts have held that this provision provides “less search and seizure protections than required under the Fourth Amendment.” After a review of Michigan cases the Court of Appeals observed

Assuming that the drone search was illegal, it was performed by a private party. True, that
person acted at the behest of a township official. But the exclusionary rule is intended to deter
police misconduct, not that of lower-level bureaucrats who have little or no training in the Fourth
Amendment. There is no likelihood that exclusion of the drone evidence in this zoning infraction
matter will discourage the police from engaging in future misconduct, since the police were never
involved in the first place. Rather, exclusion of the drone evidence likely will deter a township-8-
employee who works in the zoning arena from ever again resorting to a drone to gather evidence
of a zoning violation. This is not the purpose of the exclusionary rule.

Long Lake Township v. Maxon, slip opinion p. 7.

The Court of Appeals concluded that “the exclusionary rule was not intended to operate in this arena” because the objective of the township was not to penalize the Maxons, but rather to abate a nuisance through the operation of equitable remedies.

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Township zoning ordinance does not (necessarily) conflict with state law granting veteran right to operate mobile hot dog stand

Gary Taylor

by Gary Taylor

Padecky v. Muskegon Charter Township

Michigan Court of Appeals, September 8, 2022

Padecky is an honorably discharged military veteran.  He holds a license to sell goods pursuant to Michigan law, MCL 35.441, which provides that “[a] veteran may sell his or her own goods within this state if the proceeds from the sale of the goods are to be used for his or her direct personal benefit or gain.”  He obtained permission from a grocery store located in a C-1 – Commercial district to operate his hot dog stand in the store’s parking lot.  The Township contended that mobile food businesses were only permitted in M-1 zoning districts, and then only then by way of a special use permit.  Padecky did not dispute the fact that the C-1 zoning district does not support mobile food stands.  Instead he argued that requiring him to obtain a special use permit which would still limit him to the M-1 district violated MCL 35.441.

Relying on a case it decided in 2000, and a subsequent Michigan Attorney General’s opinion, the Michigan Court of Appeals determined that MCL 35.441 should be read to permit Townships to comply with regulations addressing the place and manner in which veterans sell goods, but may not require them to obtain permits or otherwise pay for the privilege of selling goods.  The court therefore determined that the outcome of this case turned on “how the Township’s ordinance is construed.” It first noted that the Townships zoning ordinance requires an applicant for a special use permit to have “fee title or equitable interest in the subject property.”  Padecky observed that it would be a burden for him to have a landowner seek a special use permit on his behalf.  The Court agreed, but held that permission from a landowner would be sufficient “equitable interest” in the property to allow Padecky to apply for the permit himself, and that the Township could not charge Padecky a fee for seeking the permit. “The Township may use the special use permit process for the limited purpose of ensuring that plaintiff carries on his sale of goods in an appropriate location and manner, but no more.”  From the record reviewed by the court it was unclear whether any land in the Township was zoned M-1.  The court therefore remanded the case back to the trial court for further fact finding on whether M-zoned land existed.  In doing so the court stated that “it is the Township’s obligation to ensure the existence of some property that might be appropriate for a mobile food stand – if necessary by sua sponte rezoning some other zoned property [to M-1].”

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A path is not a street

Gary Taylor

by Gary Taylor and Luke Seaberg

Cornbelt Running Club v. City of Riverdale

Iowa Court of Appeals, March 2, 2022

The City of Riverdale fenced and gated a portion of a public right of way adjacent to South Kensington Street to prevent bicyclists and runners from using a five-foot-wide asphalt-paved path within the right of way as a short cut between two recreational trails.

In the above diagram, the path is the dark strip ending in a triangle and the fence is the line bisecting the dark strip.

Cornbelt Running Club (Club) sued the city, claiming the fence amounted to an improper closure of a street, thereby creating a public nuisance under Iowa Code 657.2(5), which states:

The following are nuisances:
….
5. The obstructing or encumbering by fences, buildings, or otherwise the public roads,
private ways, streets, alleys, commons, landing places, or burying grounds

Iowa Code 657.2

The city countered that a fence is only a nuisance if, in the context of this case, it crosses a street, and the path is not a street because it is not open to vehicles. Relying on its interpretation of state statutes defining “street,” “public roads,” and others the district court concluded that the path was not, in fact, a street, and therefore no nuisance could exist. The Club appealed.

The Court of Appeals determined the following statutory definitions were relevant to the case:

“Road” or “street” means the entire width between property lines through private property or the designated width through public property of every way or place of whatever nature if any part of such way or place is open to the use of the public, as a matter of right, for purposes of vehicular traffic.

Iowa Code 306.3(8)

“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway. “Vehicle” does not include:
a. Any device moved by human power, including a low-speed electric bicycle….

Iowa Code 321.1(90)

The Court of Appeals concluded that the district court was correct. Te paved path was not a street because it was not open to the public as a matter of right for vehicular traffic; therefore, the fence across the path could not be deemed a nuisance. The Club argued that previous cases found sidewalks to be part of a street, but the Court distinguished those cases as addressing sidewalks that ran alongside streets, which was not the case here.

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