Central Life Assurance Society of the United States v. City of Des Moines

• Decision Date: 11 March 1919
• Docket Number: 32350
• Citation: 171 N.W. 31,185 Iowa 573
• Parties: CENTRAL LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant, v. CITY OF DES MOINES et al., Appellees
• Court: Iowa Supreme Court

171 N.W. 31

185 Iowa 573

CENTRAL LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant, v. CITY OF DES MOINES et al., Appellees

No. 32350

Supreme Court of Iowa, Des Moines

March 11, 1919

Appeal from Polk District Court.--LAWRENCE DE GRAFF, Judge.

SUIT in equity to enjoin the defendant city from reducing the width of the sidewalk abutting upon plaintiff's property. There was a demurrer to the petition, which was sustained. Plaintiff standing on its petition, judgment was entered dismissing the same. Plaintiff appeals.

Affirmed.

Carr Carr & Evans, for appellant.

H. W Byers, Reson S. Jones, Cole McMartin, and C. A. Weaver, for appellees.

LADD C. J. PRESTON, SALINGER, and STEVENS, JJ., concur.

OPINION

LADD, C. J.

Plaintiff owns Lot 8, Block A, Commissioners' Addition to Fort Des Moines, Iowa, being located at the corner of Seventh Street and Grand Avenue in Des Moines, with frontage of 132 feet on Grand Avenue and 67 feet on Seventh Street. Seventh Street runs north and south, and Grand Avenue, east and west. The latter street is 66 feet in width. Upon this lot there is an eight-story brick building, with basement, covering the entire lot, used as the home office of the plaintiff corporation, and with offices for rent. The building is alleged to be fitted and furnished as a modern office building, with elevators, appropriate heating apparatus, tiled floors, etc., and the principal entrance thereto is on Grand Avenue, at the center of its frontage thereon. This entrance affords access to the elevator, with two cars, each of which carries to the various floors more than 2,000 persons, during the day. Rooms in the building are being rented, in which from 350 to 400 persons are housed. The portion of Grand Avenue lying between the curbs and used as a roadway for vehicles is 42 feet in width, and on each side of the street, next to the lot line, is a sidewalk 12 feet in width. The city council of Des Moines, on June 5, 1916, passed a resolution changing the width of that portion of the street used as a roadway to 56 feet between the curbs, leaving the portion of the street to be used as a sidewalk on the south side thereof, next the building, but 5 feet in width; and it is proposing to tear up and remove all the sidewalk north of plaintiff's building, where the same fronts Grand Avenue, except 5 feet, adjacent to the lot line, and will do so, if not restrained: and it is alleged that such a walk along the north side of plaintiff's building is wholly inadequate to accommodate persons passing along the street and the large number of inmates of said building and those transacting business within the building during business hours of the day; that such persons would be crowded and jostled, and could not pass others on the walk without stepping therefrom into the street devoted to automobiles and other vehicles; that cutting the sidewalk to 5 feet there will interfere with the means of egress from and ingress to said building; that it is proposed to permit the parking of automobiles and other vehicles along said sidewalk, rendering it unsafe for pedestrians to make their way along the same; that to reduce the width of the sidewalk, as proposed, will greatly depreciate the value of the building, to plaintiff's irreparable injury; and it is further alleged that, by the resolution widening the carriageway, as proposed, from its present width to that of 56 feet, and reducing the width of the sidewalk, as proposed, the city council is abusing the power vested in it, and acting arbitrarily and unreasonably, and for this reason, said resolution is void; that, unless enjoined, said city will proceed with the work of tearing out and removing said sidewalk, as alleged, and plaintiff will suffer great and irreparable injury, if defendant is permitted to carry out the resolution and make the changes as stated: and plaintiff prayed that defendant be restrained from making the changes proposed. Defendant interposed a general demurrer, which was sustained; and, as plaintiff elected to stand on the ruling, the petition was dismissed.

Section 751 of the Code confers on the city the "power to establish, lay off, open, widen, straighten, narrow, vacate, extend, improve and repair streets * * * within their limits." Code Section 753 provides that:

"They shall have the care, supervision and control of all public highways, streets, avenues, * * * within the city, and shall cause the same to be kept open and in repair and free from nuisances."

Section 792 of the Code declares that:

"Cities shall have power to improve any street, highway, avenue or alley by grading, parking, curbing, paving, graveling, macadamizing and guttering the same or any part thereof, and to provide for the making and reconstruction of such street improvements."

A sidewalk is a part of the street exclusively reserved for pedestrians, and constructed somewhat differently from other portions of the street, made use of by animals and vehicles generally. It is paved differently so that the public may be better served, by maintaining the two portions of the way separately. Whatever may be the difference, the sidewalk constitutes a part of the street. Warren v. Henly, 31 Iowa 31.

As tersely stated in Wabash R. Co. v. DeHart, 32 Ind.App. 62 (65 N.E. 192):

"The word 'sidewalk' has a well-understood meaning. We understand ex vi termini that a part of the street is meant. It is the public way, generally somewhat raised, especially intended for pedestrians, and adapted to their use, usually constructed in this country as a part of the street, at or along the side of the part thereof especially designed and constructed for the passage of vehicles and animals, there being often, if not generally, a gutter, also constituting a part of the street, between such parts; and, when the sidewalk is spoken of as being on a specific side of a designated street, it is to be understood to be a part so reserved of that street at or along the specific side of the roadway."

See 1 Elliott on Roads and Streets (3d Ed.) Section 23; Perry v. Castner, 124 Iowa 386, 100 N.W. 84; Kohlhof v City of Chicago, 192 Ill. 249 (85 Am. St. 335, 61 N.E. 446)...