Abolt v. City of Fort Madison

• Decision Date: 07 March 1961
• Docket Number: No. 50122,50122
• Citation: 108 N.W.2d 263,252 Iowa 626
• Parties: Mrs. E. O. ABOLT, Appellant, v. CITY OF FORT MADISON, The Department of Public Docks of the City of Fort Madison, The Park Commission of the City of Fort Madison, Iowa, and the Walter Caldwell Company, Appellees.
• Court: Iowa Supreme Court

Page 263

108 N.W.2d 263

252 Iowa 626

Mrs. E. O. ABOLT, Appellant, v. CITY OF FORT MADISON, The Department of Public Docks of the City of Fort Madison, The Park Commission of the City of Fort Madison, Iowa, and the Walter Caldwell Company, Appellees.

No. 50122.

Supreme Court of Iowa.

March 7, 1961.

McManus & McManus, Keokuk, andJoseph L. Phelan, Fort Madison, for appellant.

Roy W. Deitchler, City Atty., for the City of Fort Madison, Napier & Fehseke and Pollard, Lawse & Deitchler, Fort Madison, for City of Fort Madison, Dept. of Public Docks of the City of Fort Madison and Park Commission of the City of Fort Madison, Pollard, Lawse & Deitchler, Fort Madison, and Herrick, Langdon & Sidney, Des Moines, for Walter Caldwell Co., appellees.

GARFIELD, Chief Justice.

This is a suit in equity by Mrs. E. O. Abolt, a resident property owner, to restrain defendants, City of Fort Madison, Department of Public Docks of the City, and Walter Caldwell Company, from proceeding under a lease from the dock board of the city to Caldwell of 2.2 acres of what is known as Riverview Park for the purpose of constructing and operating dock and warehouse facilities along the Mississippi river. Following trial to the court relief was denied and plaintiff has appealed. For convenience we refer to the Caldwell company, a partnership, as Caldwell.

Plaintiff owns a building and the ground on which it rests, facing south at 779 1/2 Avenue H in defendant city. She lives in part, and rents for storerooms part, of the downstairs. Upstairs are rented apartments. There are no laid out lots between plaintiff's property and the Mississippi river which flows generally west at the south edge of the city. Just south of Avenue H (which is also U. S. Highway 61 and Iowa Highway 2) and parallel to it are double tracks, respectively, of the Burlington and Sante Fe railroads.

The north line of the tract leased to Caldwell is 50 feet south of the Santa Fe tracks. It extends from the south end of Seventh street on the east to the south end of Eighth street on the west. The south line is 200 feet riverward from the north line. The lease also grants an easement along that part of the river front south of the above tract, from the water edge north a distance of 66 feet, for the purpose of constructing and operating dock facilities on the river. Also an easement between the tract first described and the river front strip for an underground pipe line and overhead conveyor and for road purposes. Distance from the south line of the north tract to the river is roughly 200 feet. Thus the north and south width of the ground between the Santa Fe tracks and the river approximates 450 feet at this point.

The lease obligates Caldwell to construct on the property immediately adjoining the river dock facilities and to operate them as a public dock with reasonable charges. Term of the lease is 50 years, renewable for 10-year periods if both parties agree. Rental is $480 a year. Caldwell plans to construct on the east part of the tract farthest from the river two round concrete tanks, about nine feet high above ground, for storage of molasses, a small scale-office and boiler house. He also plans to build on the tract a storage building about 200 x 240 feet, not over about 20 feet high. Defendants insist these buildings will be used as a public bonded warehouse.

Plaintiff does not complain here over use of the river front for a public dock but does complain about use of the leased ground for storage of molasses.

The lease was made December 8, 1954. The petition in this action was filed April 6, 1955. The lease was amended May 19, 1955, by striking a provision that lessee will operate on the leased tract 'a generally wholesale merchandising business' and inserting in lieu thereof an agreement that it will operate, under chapter 543, Iowa Code 1954, I.C.A., a bonded warehouse or warehouses for agricultural products and such facilities, including a public scale, as are reasonably necessary or proper for such operation. Both the lease and the amendment to it provide lessee will not permit on the premises any operation which creates a nuisance, the handling of goods of a highly explosive nature, or any unlawful use.

Other respects in which the lease was amended need not be stated. Caldwell testifies he intended at the time the original lease was made to use the round tanks for public warehousing of molasses and to operate a bonded warehouse on the premises. The chairman of the dock board says it was originally understood Caldwell would maintain a public warehouse as well as a public dock. Caldwell explains the reference in the original lease to 'a generally wholesale merchandising business' was because of objection to his conducting any retail business, although he says he never had any thought of doing so.

The entire area of about 30 to 32 acres south of Avenue H along the river, extending east and west for several blocks, is known as Riverview Park.

I. The City of Fort Madison was laid out and platted pursuant to an Act of Congress of July 2, 1836, 5 Stat. 70, containing this language: 'And provided further, That a quantity of land of proper width, on the river banks, at the towns of Fort Madison, Belleview, Burlington, Dubuque and Peru, and running with the said rivers the whole length of said towns, shall be reserved from sale, (as shall also the public squares) for public use, and remain for ever for public use, as public highways, and for other public uses.'

Cook v. City of Burlington, 30 Iowa 94, 97-98, 6 Am.Rep. 649, says of this provision: 'This statute operated as a qualification upon the title of the government. * * * After its passage and the sale of lots thereunder, the public acquired a right in this reserved strip for a highway and other public uses; and to the extent of the right acquired by the public, that of the government was limited and controlled. The absolute power of disposition was gone. The use was dedicated to the public. The act of congress making this dedication was in the nature of a contract which could not afterward be abrogated or repealed. (citations).

We think the congressional act reserves to public use a quantity of land of proper width on the river bank. The city took the land for the same purposes for which the government held it, subject to the same trusts and affected by the same conditions. The city may not devote the land referred to in the statute to private uses nor dispose of it except for public uses. Cook v. City of Burlington, supra.

II. It is not claimed the land leased to Caldwell nor that on which an easement is granted is part of the land directly reserved for public use by the act of 1836. Plaintiff contends the land referred to in the lease to Caldwell was added by what she calls natural and artificial accretions to the land referred to in the act of congree and is therefore subject to the same reservation to public uses. Reliance at this point is upon Cook v. City of Burlington, supra, at page 99 of 30 Iowa, and some other precedents.

To constitute an accretion there must be a gradual and imperceptible addition of soil to the shore line by action of the water to which the land is contiguous. Meeker v. Kautz, 213 Iowa 370, 372, 239 N.W. 27, 28, and citations; Rupp v. Kirk, 231 Iowa 1387, 1388, 4 N.W.2d 264, 265; 93 C.J.S. Waters § 76a; 56 Am.Jur., Waters, sections 476-7.

Solomon v. Sioux City, 243 Iowa 634, 639, 51 N.W.2d 472, 476, holds a riparian owner is not precluded from acquiring land by accretion by the fact the accumulation is brought about partly by artificial obstructions erected by third persons, where the riparian owner has no part in erecting the artificial barrier. See annotation 134 A.L.R. 467, 468.

There is little, if any, showing the land included in the lease to Caldwell was created by accretion. A well qualified witness says, 'All the area referred to as Riverview Park * * * was man-made fill into the river. * * * For a long time it was a dump, cans and rubbish the merchants would haul down and dump at the river edge. * * * There was no deposit of silt there from action of the river.' Plaintiff herself testifies, 'There is quite a bit of fill ground there.' Other evidence is to like effect.

Nevertheless we will assume in plaintiff's favor, without so holding, the land included in the Caldwell lease partakes of the same character as the land reserved for public use in the act of 1836. We do not understand defendants contend any of this river front ground may be devoted to a private use even though they say it is largely, if not wholly, man-made fill.

III. The vital question is whether proposed use of the land referred to in the Caldwell lease is, under the terms of the amended lease or as shown by the evidence, a public use. We hold it is.

As previously explained, the amended lease obligates Caldwell to construct and operate public dock facilities for which the charges will be reasonable and a bonded warehouse or warehouses, under the provisions of chapter 543, Code 1954, I.C.A., for agricultural products and such facilities as are reasonably necessary or proper for such operation. Further, as stated, plaintiff does not complain about use of the river front for a public dock. And plaintiff's counsel, in effect, conceded in argument that use of the ground for a bonded warehouse would also be a public use. Plaintiff contends, however, the amended lease is a mere guise under which Caldwell plans to devote the leased ground to a private use.

Caldwell doubtless does expect to profit from the undertaking. He is not engaged in a charitable enterprise. But it does not follow from this that the contemplated use is a private one. Projects devoted to a public use are frequently undertaken with a view to private benefit. Carroll v. City of Cedar Falls, 221 Iowa 277, 285, 261 N.W. 652, and citations; Sisson v. Board of Supervisors, 128 Iowa 442, 454-455, 104 N.W. 454, 70 L.R.A. 440; ...