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IN THE COURT OF APPEALS OF IOWA No. 6-256 / 05-1533 Filed May 24, 2006

CITY OF CUMMING, IOWA, Plaintiff-Appellant, vs. CHRISTOPHER R. SMITH and KELLY L. SMITH, Defendant-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, Dale B. Hagen, Judge.

The City of Cumming appeals the district court's ruling, which concluded the City lacked authority to require the Smiths remove two brick lampposts situated on a public right-of-way. REVERSED AND REMANDED.

James E. Nervig of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling & Levis, P.C., Des Moines, for appellant. David A. Morse of Rosenberg, Stowers & Morse, Des Moines, for appellee.

Heard by Vogel, P.J., and Zimmer and Vaitheswaran, JJ.

2 VAITHESWARAN, J. We must decide whether the City of Cumming has authority to remove two brick lampposts situated on a public right-of-way. The district court concluded the city lacked the authority to do so. We disagree. I. Background Facts and Proceedings Christopher and Kelly Smith built a home in Cumming, Iowa. On the

public right-of-way adjacent to their driveway, they constructed two brick lampposts, one of which housed a mailbox. Each lamppost was approximately four feet high and two feet wide. After the structures were erected, a man

identifying himself as the mayor of Cumming told Mr. Smith that the lampposts violated city ordinances. The city subsequently notified the Smiths that the city council would address the claimed violation at a public meeting. Following the meeting, the city council ordered the Smiths to remove the lampposts. Smiths refused to comply with the order. The City of Cumming subsequently sued for a declaration that the lampposts were a public nuisance and for an order directing the Smiths to immediately remove the structures. Following trial, the district court concluded that the lampposts were not a public nuisance and the Smiths would be permitted to retain them. 1 This appeal followed. II. Standard of Review The parties disagree on our standard of review, with the city contending it is for errors of law and the Smiths arguing it is de novo. A nuisance action may The

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The district court ruling also contains a discussion of takings law. The City points out, and we agree, that there cannot be a taking on a public right-of-way.

3 be brought in law or in equity. Woody v. Machin, 380 N.W.2d 727, 731 (Iowa 1986). This case was tried in equity. 2 Therefore, our review is de novo. III. Analysis Iowa Code section 364.12(2) (2005) requires cities to "keep all public grounds, streets, . . . public ways . . . open, in repair, and free from nuisance." A "nuisance" includes "[t]he obstructing or encumbering by fences, buildings or otherwise the public roads, private ways, streets, alleys, commons, landing places, or burying grounds." Iowa Code

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