Bennett v. City of Marion
| Decision Date | 27 October 1898 |
| Citation | 76 N.W. 844,106 Iowa 628 |
| Parties | HENRY BENNETT and ELLA BENNETT, Appellants, v. THE CITY OF MARION |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. WILLIAM G. THOMPSON, Judge.
PROCEEDINGS to condemn a portion of the plaintiffs' farm for sewer purposes. The damages were fixed at three thousand two hundred dollars, and plaintiffs appeal.
Reversed.
Rickel & Crocker for appellants.
Charles J. Haas and Jamison & Smyth for appellees.
The city council of Marion adopted a resolution on the fourteenth day of October, 1896, that about eighty-six acres of the plaintiffs' farm of one hundred and forty acres adjoining the corporate limits, were necessary for a sewer outlet, and directed the mayor to institute proceedings necessary for condemnation. This resolution was not invalid because not signed by the mayor. The city, as appears by the last census, has a population of less than eight thousand inhabitants. This is a matter of which the courts will take judicial notice. Kalbrier v. Leonard, 34 Ind. 497; People v. Page, 6 Utah 353 (23 P. 761); Merz v City of Brooklyn, 128 N.Y. 617 (28 N.E. 253); City of Savannah v. Dickey, 33 Mo.App. 522; Bradner Evidence 98. Chapter 192 of the Acts of the Twentieth General Assembly, requiring the mayor to sign resolutions, is limited in its operation to cities of the first class, and those of the second class having over eight thousand inhabitants. Heins v. Lincoln, 102 Iowa 69, 71 N.W. 189, relied on by appellants, involved a resolution by the council of a city of the first class.
II. The necessity for condemning private property for a public use is not of judicial cognizance, but lies exclusively within the province of the legislature. The power to condemn may, as in this case, be delegated to municipalities or agencies, and when this is done they have the same powers as the state acting through any regularly constituted authority. Hanson v. Vernon, 27 Iowa 28; Bankhead v. Brown, 25 Iowa 540; Barrett v. Kemp, 91 Iowa 296, 59 N.W. 76; Smith v. Hall, 103 Iowa 95, 72 N.W. 427; State v. Rapp, 39 Minn. 65 (38 N.W. 926); Aldridge v. Spears, 101 Mo. 400 (14 S.W. 118); Tait's Ex'r v. Asylum, 84 Va. 271 (4 S.E. 697); Lumbering Co. v. Urquhart, 16 Ore. 67 (19 P. 78); In re Poughkeepsie Bridge Co., 108 N.Y. 483 (15 N.E. 601); Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206; Lewis Eminent Domain, section 238; Cooley Constitutional Limitations, section 538; Lynch v. Forbes, 161 Mass. 302 (42 Am. St. Rep. 402, 37 N.E. 437); 6 Am. & Eng. Enc. Law, 517. See Town of Cherokee v. Sioux City & I. F. Town Lot & Land Co., 52 Iowa 279, 3 N.W. 42; Dewey v. City of Des Moines, 101 Iowa 416, 70 N.W. 605. "Power to acquire real estate within and without their territorial limits, necessary for the purpose of outlets for their sewers," is given cities of the second class by chapter 8 of the Acts of Twenty-sixth General Assembly. See Code, section 881. A distinction is sought to be made between the necessity for some land, and fixing the amount of the area necessary. The city may well be allowed to determine for itself whether a particular improvement shall be made (e. g. that a sewer outlet shall be constructed in a certain locality), but will it be permitted to say arbitrarily, and on ex parte consideration, the amount of land it will have for that purpose? This question was made by written objection filed, and also by answer. These objections and the answer were stricken, on motion of the city. The Code makes no provision for raising jurisdictional issues in condemnation proceedings. Where the averments of the application to condemn are not traversed in any way, the court may well treat them as admitted, and proceed to assess the damages under the statute. See South Carolina Railroad Co. v. Blake, 9 Rich. Law, 228. But suppose the owner insists he has not refused to convey, or that he and the corporation have not failed to agree on the compensation, or that all or a portion of the land is not required or being appropriated for the public use; shall he not be permitted to raise these issues in some appropriate manner? It is not so material how this is done, as it is that the landowner be permitted to have them presented to the court in some way and determined. We discover no reason for denying him the right to controvert the allegations of the application by answer or other pleading. While this is not authorized, by the statute, it is not prohibited, and is more definite and convenient than resort to oral objections. Rockwell v. Bowers, 88 Iowa 88, 55 N.W. 1. See Keokuk & N.W. Railway Co. v. Donnell, 77 Iowa 221, 42 N.W. 176; Hartley v. Railway Co., 85 Iowa 455; O'Hare v. Railroad Co., 139 Ill. 151 (28 N.E. 923); Corbin v. Railway Co., 66 Iowa 269.
III. Is the determination of the city council of the amount of land necessary for use as a sewer outlet final, or may the question be reviewed by the courts? If the amount sought to be condemned is in excess of that necessary for the improvement, the appropriation of such excess is not for the public use. It will be noticed that the precise property, or the amount thereof, is not fixed by the legislature, but authority is conferred upon the city council to take for the public use only that real estate necessary therefor. If the use be not public, or the necessity does not exist, the owner ought not to be deprived of his property, notwithstanding compensation. With the policy or expediency of condemnation the courts have nothing to do. The necessity and the extent of the exercise of the power of eminent domain belong exclusively to the legislature,--the use being public,--provided such compensation is made, and the property sought to be taken will conduce to some extent to the accomplishment of the object to which it is devoted. Thus the mere public convenience will not justify the appropriation of property. Memphis Freight Co. v. Mayor, etc., of Memphis, 44 Tenn. 419, 4 Cold. 419. Prather v. Railroad Co., 52 Ind. 16: "Necessity is not made out by proof of great convenience, nor the enhancement of values, nor of the accumulation of property of the same kind for the same use." In other words, the appropriation may not be made for collateral purposes. Spring Valley Waterworks v. San Mateo Waterworks, 64 Cal. 123 (28 P. 447); Jefferson v. Hazeur, 7 La.Ann. 182; Railroad Co. v. Davis, 43 N.Y. 137. The city council had the power to finally determine the necessity of the improvement and its location, but its determination of the amount of land necessary therefor is subject to review by the courts. In many cases it may be difficult for the court to determine whether all the property sought by the corporation will be necessary, and it may be well to say that the opportunities of the latter to judge of its needs must be taken into consideration. The danger always to be guarded against is the abuse of power, in taking more from the citizen than is reasonably required for the improvement contemplated. The rule adopted in New York is that the property sought to be acquired must be for the purposes of the corporation, and reasonably necessary for the use for which it is condemned. In re New York Cent. & H. R. Ry. Co., 77 N.Y. 248; Railroad Co. v. Davis, supra. The same rule obtains in other states. Tracy v. Railroad Co., 80 Ky. 259; Spring Valley Waterworks v. San Mateo Waterworks, supra; Railroad Co. v. Wiltse, 116 Ill. 449 (6 N.E. 49); O'Hare v. Railroad Co., 139 Ill. 151 (28 N.E. 923). A large discretion is lodged with the city council in fixing the amount of land necessary for the particular improvement, and its determination should only be interfered with to prevent the abuse of power. If the land sought to be taken will to some extent conduce to the public use for which it is to be devoted, the decision of the municipality that it is necessary therefor should not be interfered with; otherwise it should be set aside. As supporting these views, see Lewis Eminent Domain, section 393; O'Hare v. Railroad Co., 139 Ill. 151 (28 N.E. 293); In re St. Paul & N. P. Ry. Co., 34 Minn. 227 (25 N.W. 345); Wisconsin Cent. R. Co. v. Cornell University, 52 Wis. 537 (8 N.W. 491); Olmstead v. Proprietors, 46 N.J.L. 495; Railroad Co. v. Davis, 43 N.Y. 137; Spring Valley Waterworks v. San Mateo Waterworks, 64 Cal. 123 (28 P. 447); Baltimore & O. R. Co. v. Pittsburg, W. & Ky. R. Co., 17 W.Va. 812; Railway Co. v. Blake, 9 Rich. Law, 228; Railway Co. v. Love, 81 N.C. 434; McWhirter v. Cockrell, 39 Tenn. 9, 2 Head 9; Railway Co. v. Gay, 32 La.Ann. 471. Lynch v. Forbes, 161 Mass. 302 (42 Am. St. Rep. 406, 37 N.E. 437) on which appellees rely, goes no further than to hold that the necessity for an improvement, and its location, are for the selectmen of the town to determine. The appropriation of land in excess or at variance with their powers was not involved. In Stark v. Railroad Co., 43 Iowa 501, it was held that land within the limit fixed by the legislature for a right of way is conclusively presumed to be necessary. Barrett v. Kemp, supra, construed a statute essentially differing from that under consideration.
III. At the request of the defendant the court gave the following instruction: "You are not to assume or consider that the land proposed to be appropriated will not be used in a lawful and proper manner for the purpose proposed by the defendant city, and you will not consider or allow any damages based upon the claim that said...
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