Chiesa & Co. v. City of Des Moines
| Decision Date | 14 December 1912 |
| Citation | 138 N.W. 922,158 Iowa 343 |
| Parties | CHIESA & COMPANY and PETER CHIESA, Appellees, v. THE CITY OF DES MOINES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
ACTION at law to recover damages alleged to have been sustained by the plaintiffs because of a change made by the city in the street grade fronting a certain lot and building occupied by the plaintiffs as tenants for years of the fee owner. There was a verdict and judgment for plaintiffs, and defendant appeals.
Affirmed.
R. O Brennan, H. W. Byers, and E. C. Carlson, for appellant.
Miller & Wallingford, and O. H. Miller, for appellees.
The property in question abuts upon East Locust street, one of the principal streets of Des Moines, and near the east end of the bridge which carries said street over the Des Moines river. As originally established, the grade sloped downward somewhat rapidly from the bridge eastward to a point near the property in question, whence it followed an ascending slope for a distance of several blocks. Adjacent to this grade the lot in question had been improved by the erection of a building. The plaintiff acquired the possession and use of the lot, as thus improved, in April, 1907, under lease from the owner for a term of five years. In the year 1909 a change in the grade of East Locust street was ordered by the city raising the same about six feet in front of this lot. The work of conforming the street to the new grade has been done, and plaintiff sues to recover damages for the consequential injuries to his leasehold interest. There was trial to a jury and verdict found for plaintiff for $ 506.
The argument in support of the appeal presents the single question whether a tenant under a lease for a term of years is entitled to maintain an action of this nature. The argument by which the appellant negatives the proposition may be briefly stated as follows: The right to recover damages for injuries resulting to abutting property by reason of a change of grade was unknown to the common law, and now exists only where it is expressly provided for by statute. Our statute creates such right but limits it to the "owner" of the property so affected. A tenant under lease from the holder of the legal title is not an "owner" of the property, and, although his leasehold interest may suffer injury, the law gives him no remedy. To the soundness of this reasoning we now give consideration.
That the right to recover damages occasioned by the act of the public authorities in altering the grade of a city street exists only by reason of some statute providing therefor may be admitted for the purposes of this case. In a very early case (Creal v. Keokuk, 4 G. Greene [Iowa] 47) the court, feeling bound by what it believed was the weight of authority, expressed its reluctant assent to that view. That precedent has since been cited with approval. Cotes v. Davenport, 9 Iowa 227; Russell v. Burlington, 30 Iowa 262, 267; Farmer v. Cedar Rapids, 116 Iowa 322, 324, 89 N.W. 1105.
The statutes under which plaintiff asserts his alleged right of recovery reads as follows: "When any city or town shall have established the grade of any street or alley, and any person shall have made improvements on the same, or lots abutting thereon, according to the established grade thereof, and such grade shall thereafter be altered in such a manner as to damage, injure or diminish the value of such property so improved, said city or town shall pay to the owner of such property the amount of such damage or injury." Code, section 785. It is manifest from the foregoing that the decision of the question thus presented turns entirely upon the word "owner," as used in the statute, and whether it may properly be construed to include tenant as well as holder of the title.
The appellant starts out with the proposition that the statute, being in derogation of common law, must be given a strict construction. That this rule prevails in many jurisdictions is quite true. It has, however, a much less restrictive effect in our procedure because of our statutory rule of construction providing that Code, section 3446. The old rule has at times been quoted by our courts with apparent forgetfulness of this wholesome provision, but a statute so clearly in accord with essential justice and fairness ought not to be ignored or allowed to fall into disuse.
The word "owner" is of frequent use in our statutes pertaining to property and property rights, and, like most words, its significance is subject to some degree of variance, dependent upon its context and the subject-matter to which it is applied. In common speech it is doubtless most often used to designate the person in whom the legal or equitable title rests, as distinguished from a mere occupant or tenant. As used in law, it is very often given a wider and more comprehensive meaning. In its strictest sense, the owner of land is he who had the sole right of dominion, use enjoyment, and disposition. It may happen, however, and does happen every day, that with respect to a given item of real property the various elements or estates which together make up what we may call absolute ownership are vested in different persons. One may hold the legal title, another the equitable title, another a tenancy for life, and another a term of years. Each owns a property right in the land, and each is, for many purposes, the actual owner thereof. The statutes of the state expressly note the existence of different estates in the same land, and inferentially recognize the several holders of such distinct estates as owners. It is provided that the words "land," "real estate," and "real property" shall be held to include lands, tenements, hereditaments, and all rights thereto and interests...
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