Ashman v. City of Des Moines
| Citation | 228 N.W. 316,209 Iowa 1247 |
| Decision Date | 13 December 1929 |
| Docket Number | 39809 |
| Parties | KITTIE ASHMAN, Appellee, v. CITY OF DES MOINES, Appellant |
| Court | United States State Supreme Court of Iowa |
REHEARING DENIED MARCH 21, 1930.
Appeal from Polk District Court.--HERMAN F. ZEUCH, Judge.
Action at law to recover damages for alleged substantial interference with the plaintiff's means of ingress and egress to and from her property. Verdict and judgment for the plaintiff. Defendant appeals.
Affirmed.
Charles Hutchinson, for appellant.
Fred C Huebner, for appellee.
OPINION
Center Street and Crocker Street in the city of Des Moines are parallel streets, and run east and west, Center Street being the next street south of Crocker Street. They intersect at right angles with Fourth and Fifth Streets, Fourth Street being the next street east of Fifth Street. About half way between Fourth and Fifth Streets there is a paved alley, running north from Center Street and intersecting with Crocker Street. Lying immediately to the north of Center Street, and between said alley and Fifth Street, is a tract of real estate described as Lots 1 and 2, in Division 1 of Grimmel's Addition to the Town of Fort Des Moines. Plaintiff is the owner of the east half of said two lots. This property is approximately 66 feet east and west and 132 feet north and south. It thus appears that plaintiff's property is adjacent to both Center Street and the aforesaid alley. On this property is a two-story house, containing 14 rooms, which the plaintiff occupies and uses as a rooming house. Center Street in front of plaintiff's property is paved. From some time in 1920 or 1921 to and including the summer or autumn of 1923, the defendant city physically lowered the grade of Crocker Street about 10 or 12 feet between Fourth and Fifth Streets, without also physically lowering the grade of said alley, and placed a permanent barrier across the entire width of the alley at or a little south of where said alley intersects with Crocker Street. As a result of the lowering of the grade of Crocker Street and the erecting of said barrier, there is no outlet from said alley north of Center Street.
During the same period of time, the defendant city physically lowered the grade of Fifth Street, and also the grade of Center Street, at and a little east of where said two streets intersect, and as a result thereof, there is an abrupt embankment at said intersection, of about 24 feet in height. The city has built and is maintaining a flight of 26 steps up said embankment, at or about the middle of Center Street. From the top of said steps, the city has built two board walks, one of which runs in a northeasterly direction, and intersects, at the southwest corner of plaintiff's premises, with the sidewalk on the north side of Center Street. The other of said board walks runs from the top of said steps in a southeasterly direction, and intersects with the sidewalk on the south side of Center Street. About 15 feet to the east of the west line of plaintiff's premises, the city has erected and is maintaining a permanent barrier, about 6 feet high.
It will thus be observed that the improvements as made by the city constitute an obstruction to vehicular travel westward to and from plaintiff's property. Prior to the time of the construction of this so-called improvement, Center Street was well paved, and there was free access to and over the same to the other streets to the west connecting therewith. As a result of the aforesaid obstructions in Center Street, the only access to plaintiff's property is from Fourth Street to the east, and then westward on Center Street. The action of the city was pursuant to an ordinance changing the grade of said streets.
The plaintiff, in her petition, alleges that, from 1920 to and including September 3, 1923, the defendant city physically lowered the grade of Center Street, and made an embankment of some 20 feet in height at and a little east of where Center Street intersects with Fifth Street, and said city also built and maintains a flight of 26 steps up said embankment at or about the middle of Center Street, at and a little east of said intersection; that said city built and maintains a barricade across Center Street in front of plaintiff's said property; and that all of said alterations and obstructions cut off, or substantially impair, plaintiff's free and convenient means of ingress and egress to and from her property westward on Center Street, except on foot. She also alleges that the city cut off, or substantially impaired, the free and convenient means of access to and from her property by closing and obstructing the north end of the alley which runs north and south and adjacent to plaintiff's property, and that, because her free and convenient means of ingress or egress have been cut off, or substantially impaired, by all of the alterations and obstructions aforesaid, she has been damaged.
The defendant, for answer, denied generally the allegations of the petition; alleged that plaintiff's cause of action is barred by the Statute of Limitations; also averred that plaintiff's damages for cutting off, or substantially impairing, her means of ingress or egress have been formerly adjudicated in an appeal which the plaintiff took to the district court from a special assessment which the city levied against her property on account of benefits to her property from the opening, widening, grading, and paving of Fifth Street.
Upon trial of the issues thus joined, a verdict was returned in favor of the plaintiff, and judgment was rendered thereon. From this judgment the defendant city has appealed.
One of the contentions of the defendant is that plaintiff's cause of action is barred by the Statute of Limitations. Under Section 11007 of the Code, 1927, the action is not barred, provided it was brought within five years after the cause of action accrued. The action was begun March 24, 1928. While the record shows that some of the work of excavating was done in 1921 and 1922, yet it is shown that much labor in connection with the improvement was performed in 1923, and that the improvement was not accepted as completed until August 7, 1923. The uncontroverted evidence shows that, on February 9, 1920, a contract was entered into between the city and Frank Cram & Sons for the grading of West Fifth Street from the north line of Chestnut Street to the south line of School Street; also the grading of Crocker Street from the west line of Fourth Street to the east line of Sixth Avenue; also the grading of Center Street from the west line of Fourth Street to the east line of Sixth Avenue; also Park Street from the first alley east of Fifth Street to the east line of Sixth Avenue. The foregoing was all one unit. It will be observed that the contract provided for the grading of Center Street south of plaintiff's premises, which has not been done, and the reason therefor is not disclosed by the record. If the grading on Center Street south of plaintiff's premises had been done, plaintiff's cause of action would be far different from the one which she has brought.
It is shown by the record that the city stopped Cram in his work about the middle of February, 1921. He was then grading on Crocker Street. Later, another contract was let to the Des Moines Asphalt Company for the grading. After Cram ceased work, a sewer was laid on Fifth Street. The employees were a year or more laying the sewer and piping the water from the springs into the sewer, all of which was necessary before the paving could be laid. The latter company also did considerable of the grading in 1922 or the fore part of 1923. Dirt had slid in from the banks from the sides of Fifth Street until it was practically refilled, and the dirt had to be removed. After the latter company had completed the grading, the paving was laid, and completed by said company in July, 1923. It is quite clear from the record that the entire improvement contemplated was one project, and not...
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