Borghart v. City of Cedar Rapids

• Decision Date: 11 January 1905
• Citation: 101 N.W. 1120,126 Iowa 313
• Parties: BORGHART v. CITY OF CEDAR RAPIDS.
• Court: Iowa Supreme Court

126 Iowa 313

101 N.W. 1120

BORGHART

v.CITY OF CEDAR RAPIDS.

Supreme Court of Iowa.

Jan. 11, 1905.

Appeal from District Court, Linn County; Wm. G. Thompson, Judge.

May, Fero & Gainor's Addition to Cedar Rapids was platted in 1856. The plaintiff became owner of lot 3 in block 9 in 1896. As appears from the annexed plat, this lot, with others, abutted on ground designated “Public Square” which furnished the only access to it. In 1902 the defendant city conveyed that part of the square bounded by block 9 and First street and Fourteenth avenue to the John Huss Methodist Episcopal Chapel, and the latter erected a parsonage thereon, so as to completely obstruct all access by way of the square to said lot. It was stipulated that the depreciation in the value of the lot resulting therefrom was $125, but contended on the part of the defendant that the law does not authorize recovery for any injury occasioned by the vacation of a street or public ground. The court directed a verdict for plaintiff, and from judgment thereon the defendant appeals. Affirmed.John N. Hughes, for appellant.

Powell, Harmon & Powell, for appellee.

LADD, J.

The validity of the proceedings which resulted in the vacation of that portion of the public square affording access to plaintiff's lot and its conveyance by the city to the John Huss Methodist Episcopal Chapel is not questioned by either party. That this square was intended to be used in part, at least, as a street approach is manifest from the fact that some of the lots were platted facing it, and with no other means of access. This is conceded, impliedly, at least, by appellant, for the cause is submitted on the theory that damages for the vacation of a street or public ground used as such may not be recovered from the city. The power to vacate is expressly conferred by statute, and, when all property owners are affected alike, though in different degrees, by its exercise, there is no ground upon which to base a remedy. But here the injury complained of is peculiar to plaintiff's property, and not such as is shared by the public generally. In so far as the street or public ground was necessary to the free and convenient way for travel to and from the lot, her right to its use for that purpose was appurtenant to her premises, and essential to their enjoyment. The abutter has a right, in common with the community, to use the street from end to end for the purpose of passage; but, in addition to this common right, he has an individual property right, appendant to his premises in that part of the street which is necessary to free and convenient egress and ingress to his property. That this latter right is private and personal and unshared by the community, and cannot be taken away without answering in damages, is held by substantially all the authorities. O'Brien v. Central I. & S. Co., 158 Ind. 218, 63 N. E. 302, 57 L. R. A. 508, 92 Am. St. Rep. 305;Anderson v. Turbeville, 6 Cold. 150;Selden v. City of Jacksonville, 28 Fla. 558, 10 South. 457, 14 L. R. A. 370, 29 Am. St. Rep. 278;Moose v. Carson, 104 N. C. 431, 10 S. E. 689, 7 L. R. A. 548, 17 Am. St. Rep. 681;Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N. E. 761;Bradbury v. Walton, 94 Ky. 167, 21 S. W. 869;Heinrich v. City of St. Louis, 125 Mo. 424, 28 S. W. 626, 46 Am. St. Rep. 490; Elliott on Roads & Streets, § 877. The question considered in Long v. Wilson, 119 Iowa, 267, 93 N. W. 282, 60 L. R. A. 720, 97 Am. St. Rep. 315, was whether an adjudication against a municipality that certain ground was not a part of the street was res adjudicata as to a landowner ingress and egress to whose property would be cut off, and it was declared...