Braden v. Board of Sup'rs of Pottawattamie County, No. 52881

CourtUnited States State Supreme Court of Iowa
Writing for the CourtRAWLINGS; GARFIELD; SNELL; STUART
Citation157 N.W.2d 123,261 Iowa 973
Decision Date05 March 1968
Docket NumberNo. 52881
PartiesAnnie A. BRADEN, Appellee, v. BOARD OF SUPERVISORS OF POTTAWATTAMIE COUNTY, Iowa, Appellant. Laura A. RUSH, Appellee, v. BOARD OF SUPERVISORS OF POTTAWATTAMIE COUNTY, Iowa, Appellant.

Page 123

157 N.W.2d 123
261 Iowa 973
Annie A. BRADEN, Appellee,
v.
BOARD OF SUPERVISORS OF POTTAWATTAMIE COUNTY, Iowa, Appellant.
Laura A. RUSH, Appellee,
v.
BOARD OF SUPERVISORS OF POTTAWATTAMIE COUNTY, Iowa, Appellant.
No. 52881.
Supreme Court of Iowa.
March 5, 1968.

[261 Iowa 974]

Page 124

Hess, Peters, Sulhoff & Walker, Council Bluffs, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellees.

[261 Iowa 975] RAWLINGS, Justice.

Each plaintiff appealed to district court from denial of damages allegedly resulting from defendant board's Code chapter 306 order vacating bridge portion of local secondary road. Both cases were consolidated for purpose of submission. Defendant filed motions to dismiss and for adjudication of law points. Trial court overruled motions to dismiss. With leave granted, (rule 332, R.C.P.), defendant takes unchallenged appeal. We affirm.

Although the record fails to so disclose, it is assumed plaintiffs' petitions and defendant's motions, on appeal to district court, are identical in each of the cases presented.

March 1960, Bridge No. 2801, crossing Walnut Creek, in Pottawattamie County, located on a local secondary unimproved road, was destroyed by ice and never replaced.

April 8, 1966, county board of supervisors published notice of hearing on proposed vacation of that part of the roadway lying between the creek banks. Section 306.6, Code, 1966.

Plaintiffs, Annie A. Braden and Laura A. Rush, owners of land adjoining either side of the roadway and both sides of the creek, filed objections to the proposal, also claiming damages.

After hearing on objections and claims, the board entered an order of vacation as proposed and denied damages sought by plaintiffs.

Braden and Rush both appealed to district court. Section 306.11, Code, 1966.

The sole proposition urged by defendant in support of reversal is that plaintiffs' petitions failed to state a cause of action because, (1) the respective properties do not abut that portion of the roadway being vacated so as to affect rights of access to highways generally, and (2) plaintiffs' individual rights of access to abutting roadway are not substantially interfered with or cut off.

I. Trial court's rulings on motions for adjudication of law points are neither challenged nor argued on appeal. In that regard this court has repeatedly held a proposition neither assigned nor argued presents no question and need not be considered by us on review. See Associates Discount Corp. v. Held, 255 Iowa 680, 683--684, 123 N.W.2d 869.

[261 Iowa 976] However, as counsel undoubtedly realized, law points unavoidably involved

Page 125

in the motions to dismiss must be accordingly considered.

II. The first question posed is whether plaintiffs' properties abut that portion of the road vacated by defendant board.

Walnut Creek is a nonavigable waterway running generally north and south.

Braden owned land north of the subject road, the material portion here concerned consisting of a 240 foot tract dissected by the creek.

The Rush land consists of 40 acres south of the roadway, also divided by the stream.

Ordinarily the boundary line between lands of separate owners bordering on a nonnavigable waterway, is the middle thread of the channel. But where, as in the case at hand, such a water course flows over the land of a singular owner, he generally has title to the whole of the stream bed within the boundaries of his property. Holmes v. Haines, 231 Iowa 634, 639, 1 N.W.2d 746. See also Patton on Titles, section 81, page 287; Tiffany on Real Property, Abridged Ed., section 674, page 689; 11 C.J.S. Boundaries § 27b(2), page 571; 93 C.J.S. Waters § 71, page 745; and 12 Am.Jur.2d, Boundaries, section 22, page 564.

III. However, defendant argues plaintiffs' lands do not abut the bridgeway itself by reason of which there is no abutment with that part of the road vacated. This argument is without substance.

The order entered by defendant board is not before us. But plaintiffs' petitions alleged the area vacated is the public road 66 feet wide between the banks of Walnut Creek. For our purpose this factual allegation must be accepted as true. See Burd v. Board of Education of Audubon County, Iowa, 151 N.W.2d 457, 463, and Harvey v. Iowa State Highway Commission, 256 Iowa 1229, 1230, 130 N.W.2d 725.

With regard to the foregoing, section 306.8, Code, 1966, provides in part: 'Any person owning land abutting on a road which it is proposed to vacate and close, shall have the right to file, in writing, a claim for damages at any time on or before the date fixed for hearing.'

[261 Iowa 977] And section 306.10, states, inter alia: 'Said commission or board may dismiss the proceedings, or it may vacate and close such road, part thereof, or crossing, in which event it shall determine and state in the order the amount of the damages allowed to each claimant. Said order thus entered shall be final except as to the amount of the damages.'

As employed in section 306.8, supra, the term 'land abutting on a road' means lands adjoining, coming together with, contiguous to, meeting or touching a roadway. See section 4.1(2), Code, 1966; Wormley v. Board of Supervisors, 108 Iowa 232, 234, 78 N.W. 824; State v. Fuller, Tex., 407 S.W.2d 215, 220--221; State ex rel. Badtke v. School Board of Joint Common School Dist., 1 Wis.2d 208, 83 N.W.2d 724, 726--727; 1 C.J.S., 'Abut', page 406; 25 Am.Jur., Highways, section 153, page 448; and Black's Law Dictionary, Fourth Ed., pages 25--26.

Since each of these...

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13 practice notes
  • Voss v. City of Middleton, No. 89-1519
    • United States
    • United States State Supreme Court of Wisconsin
    • June 19, 1991
    ...term. See Clements v. City of Corpus Christi, 471 S.W.2d 83, 85-6 (Tex.App.1971); Braden v. Board of Supervisors of Pottawattamie Co., 261 Iowa 973, 977, 157 N.W.2d 123 (1968) (construing statutory term Equally significant, the historical evolution of sec. 66.296, Stats., suggests that the ......
  • Simpson v. Iowa State Highway Commission, No. 54650
    • United States
    • United States State Supreme Court of Iowa
    • February 25, 1972
    ...bed. There is no dispute on this point. Cf. Watt v. Robbins, 160 Iowa 587, 601, 142 N.W. 387 (1913); Braden v. Board of Supervisors, 261 Iowa 973, 976, 157 N.W.2d 123 The condemned tract was carved from a 27-acre tract owned by plaintiff partners and used by them as a gravel pit. They had p......
  • Board of Sup'rs of Cerro Gordo County v. Miller, No. 53661
    • United States
    • United States State Supreme Court of Iowa
    • September 5, 1969
    ...propositions properly relied on And argued. Rule 344(a)(4) Third, R.C.P.; Braden v. Board of Supervisors of Pottawattamie Co., Iowa, 157 N.W.2d 123, 124; Quint-Cities Petroleum Co. v. Maas, 259 Iowa 122, 126, 143 N.W.2d 345; and B-W Acceptance Corporation v. Saluri, 258 Iowa 489, 499, 139 N......
  • Stom v. City of Council Bluffs, No. 54343
    • United States
    • United States State Supreme Court of Iowa
    • September 9, 1971
    ...v. City of Council Bluffs, supra, 232 Iowa at page 225, 5 N.W.2d at page 376. In our recent decision, Braden v. Board of Supervisors, 261 Iowa 973, 978, 157 N.W.2d 123, 126 (1968), we say, 'Hultman, Eminent Domain in Iowa, Revised Ed. (1962), page 22, states: '* * * once a right of access v......
  • Request a trial to view additional results
13 cases
  • Voss v. City of Middleton, No. 89-1519
    • United States
    • United States State Supreme Court of Wisconsin
    • June 19, 1991
    ...term. See Clements v. City of Corpus Christi, 471 S.W.2d 83, 85-6 (Tex.App.1971); Braden v. Board of Supervisors of Pottawattamie Co., 261 Iowa 973, 977, 157 N.W.2d 123 (1968) (construing statutory term Equally significant, the historical evolution of sec. 66.296, Stats., suggests that the ......
  • Simpson v. Iowa State Highway Commission, No. 54650
    • United States
    • United States State Supreme Court of Iowa
    • February 25, 1972
    ...bed. There is no dispute on this point. Cf. Watt v. Robbins, 160 Iowa 587, 601, 142 N.W. 387 (1913); Braden v. Board of Supervisors, 261 Iowa 973, 976, 157 N.W.2d 123 The condemned tract was carved from a 27-acre tract owned by plaintiff partners and used by them as a gravel pit. They had p......
  • Board of Sup'rs of Cerro Gordo County v. Miller, No. 53661
    • United States
    • United States State Supreme Court of Iowa
    • September 5, 1969
    ...propositions properly relied on And argued. Rule 344(a)(4) Third, R.C.P.; Braden v. Board of Supervisors of Pottawattamie Co., Iowa, 157 N.W.2d 123, 124; Quint-Cities Petroleum Co. v. Maas, 259 Iowa 122, 126, 143 N.W.2d 345; and B-W Acceptance Corporation v. Saluri, 258 Iowa 489, 499, 139 N......
  • Stom v. City of Council Bluffs, No. 54343
    • United States
    • United States State Supreme Court of Iowa
    • September 9, 1971
    ...v. City of Council Bluffs, supra, 232 Iowa at page 225, 5 N.W.2d at page 376. In our recent decision, Braden v. Board of Supervisors, 261 Iowa 973, 978, 157 N.W.2d 123, 126 (1968), we say, 'Hultman, Eminent Domain in Iowa, Revised Ed. (1962), page 22, states: '* * * once a right of access v......
  • Request a trial to view additional results

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