Court Construes Iowa Law on Per-Se Nuisance for Alleged Alley Obstruction

Nuisances, an invasion of an individual’s use and enjoyment of the land, are typically classified in two ways. A private nuisance is a civil wrong, based on a disturbance of rights in land and a public nuisance is an interference with the rights of the community at large. In yet another case of nuisance, the Iowa appellate courts are once again dealing with the issue of private nuisance, specifically the issue of nuisance per se (an action that is automatically deemed (often by statute) to be a nuisance regardless of the circumstances involved).  Here, property owners brought suit against a city and asked the court to order the removal of a decorative fence, electrical access box, telephone pedestal and cable television pedestal located in the alley adjacent to their property. The alley adjacent to the property owners’ parcel was platted and dedicated to the city in 1901. When the owners bought the property, the utilities were in the same location. A subsequent survey revealed that the utilities were encroaching on their parcel. The owners asked that the structures be removed, but the city did not honor the request The owners sued, claiming  that the structures should be moved and they should be compensated for the lost use of the alley. 

At trial, the court dismissed all claims made by the owners. They appealed and the Iowa Court of Appeals was asked to determine whether the encroachments were a nuisance per se under Iowa Code §657.2(5).  That section specifies that  the encumbering or the obstructing by fences, buildings, or otherwise public roads, private ways, streets, alleys, commons, landing places, or burying grounds of private property constitutes a nuisance. The appellate court affirmed, determining that the encroachments were not a nuisance per se, because the structures did not unreasonably obstruct or encumber the alley or deny access to the owners’ property. The owners enjoyed the same access and freedom of movement on their property when they filed suit as when they purchased the property. 

Finally, the court noted that even if a nuisance did exist, they would not order the city to move the encroachments, because the issuance of a writ of mandamus is a drastic remedy and must only be applied in certain circumstances. Under Iowa law, a city is required to keep alleys free from nuisance.  However, a city may only be forced to abate the nuisance, if one exists, by way of “any reasonable manner.”  Allen v. City of Panora, No. 9-394/08-1797 (Iowa Ct. App., Jun. 17, 2009).