by Gary Taylor
(Iowa Court of Appeals, June 17, 2009)
City not liable in nuisance for obstructions in alley. Landowners could not compel city to order structures removed from alley.
In 1988 the Allens purchased property in Panora. Property to the north of the Allens is owned by the Dungans. Between the two properties is a sixteen-foot-wide alley that was platted and dedicated to the city in 1901. At the time the Allens purchased their property an electrical access box, telephone pedestal, and cable television pedestal were located in the alley, in the same place they are now. A decorative fence was placed in the alley in 1998 or 1999.
In the summer of 2003, a survey revealed that the utility structures and the fence were seven feet into the alley. The Allens claimed this was the first they were aware of this fact. They requested the city order the structures moved and when this did not happen, the Allens filed suit against the city to (among other claims) compel the city to remove the utility structures and fence, and to recover damages for nuisance and injury to their property. The district court denied all of the Allens’ claims and entered judgment for the city.
The Court of Appeals affirmed the district court on all counts. It found that the Allens failed to prove a nuisance under Iowa Code 657.2(5) because they have always had reasonable and convenient access to their property from the street, nine feet of the alley was not affected by the utility structures, and the alley still provided them reasonable secondary access to their property. The Court also reasoned that the City has taken no action that would limit access to the Allens’ property to any greater extent than the access they had when they purchased the property in 1988.
The Court of Appeals went further to observe that even if there was a nuisance, a writ of mandamus would not be appropriate. Mandamus is not available to control a city’s discretionary authority, and the decision as to whether to seek to abate a nuisance is discretionary with the city. Under Iowa Code 364.12 “a city shall keep all . . . alleys . . . free from nuisance . . . .” but also provides “a city may require the abatement of a nuisance, public or private, in any reasonable manner.”