Chrisman v. Brandes

• Decision Date: 03 July 1907
• Citation: 137 Iowa 433,112 N.W. 833
• Parties: CHRISMAN ET AL. v. BRANDES ET AL. GILBERT v. BRANDES ET AL.
• Court: Iowa Supreme Court

137 Iowa 433

112 N.W. 833

CHRISMAN ET AL.

v.BRANDES ET AL.

GILBERT

v.BRANDES ET AL.

Supreme Court of Iowa.

July 3, 1907.

Appeal from Superior Court of Council Bluffs; G. H Scott, Judge.

Two cases are here submitted for determination; one an action in certiorari to review the action of the board of supervisors in vacating certain streets and highways of Manawa Park, and the other an action in equity to enjoin the board of supervisors from vacating certain streets and highways in Manawa Park. The cases were tried together. They were submitted on the same testimony, and by stipulation are submitted on the same record here. Lake Manawa is a small lake near Council Bluffs, Iowa, and in 1887 the land bordering on this lake to the north was platted into lots, streets, and alleys by the then owner thereof, one I. M. Hay. In 1888, a town known as Manawa Park was incorporated, embracing within its limits the plat made by said Hay, and for a number of years it continued as a de facto municipal corporation, with the usual offices and officers provided by law for such corporations. During the existence of said town, some of the plaintiffs and others brought an action to sever certain territory from the town of Manawa and secured a decree severing such territory and vacating all of the streets and alleys of Manawa Park north of Park avenue, and, after such severance, all of the lands included in the plat of Manawa Park north of Park avenue were inclosed and used as agricultural lands. Still later suit was brought to vacate the establishment of the town of Lake Manawa, on the ground that a municipality had not been created as provided by law, and in that action a judgment was entered as prayed, and thereafter the town of Lake Manawa ceased to exist as a corporation either de jure or de facto. In 1900, the Omaha, Council Bluffs & Suburban Railway Company became the owner of blocks 27, 28, 29, 30, 31, 33, and 34 of Manawa Park, and thereafter they filed an instrument as the owner of abutting property vacating those blocks and the alleys therein and the streets abutting thereon, including South Third street between blocks 30 and 31, and proceeded to inclose these premises, including South Third street between blocks 30 and 31, as a part of their park. Proceedings were also had before the board of supervisors of the county of Pottawattamie, by which part of Boulevard, Portland avenue, South Fourth street, and Regetta avenue were vacated by the board of supervisors, to which proceedings the appellees herein, other than the Gilberts, were parties. In the meantime, a part of the old county road east of South Third street had been vacated, and a road known as the “Marks' Consent Road,” connecting South Second street with the old county road, had been established. In 1902, Chrisman and others, plaintiffs in this certiorari action, commenced a suit in the superior court of Council Bluffs to enjoin the inclosure of all these streets and highways. There was a trial of that case, and a judgment therein enjoining the street railway company from the inclosure of Park avenue, South Third street, Lake avenue, and the intersection of Boulevard and South Third street, and dismissing the bill as to other streets. An appeal to this court was taken in that case, and the judgment of the lower court was affirmed by an opinion which is reported in 100 N. W. 63, 125 Iowa, 133. After this decision had been handed down, the Omaha, Council Bluffs & Suburban Railway Company and others filed with the board of supervisors the petition in controversy in this action. Notice of the filing of this petition for vacation was in proper form, and service was had on all the plaintiffs in this certiorari case except the Gilberts and Day and Hess. A commissioner was duly appointed thereafter, who made an examination of the premises and reported in favor of the vacation. Pending these proceedings before the board, Gilbert, the plaintiff in the equity case herein, sued out a writ of injunction to restrain the board of supervisors from vacating any of these streets and alleys. A temporary restraining order was issued, which the defendants subsequently moved to vacate or modify, and it was in fact vacated as to all streets and alleys except Main street and Lake avenue, and, as to these streets, it was continued for final hearing. On the dissolution of this restraining order, the board of supervisors proceeded to the consideration of the petition for the vacation of the streets and alleys. Objections thereto were filed by Chrisman and Robards and others of the plaintiffs, and at the hearing the Gilbert brothers appeared and were represented by counsel, and Day and Hess by a member of their firm. After a full hearing, the board of supervisors passed a resolution vacating all the streets and alleys asked to be vacated in the petition except Main street and Lake avenue, and continued the hearing as to those streets. Thereafter the appellees in the certiorari case sued out a writ of certiorari to set aside the action of the board of supervisors in vacating these streets, and the petitioners, for the vacation thereof, dismissed the application pending before the board as to Main street and Lake avenue. On the trial, there was a judgment in the certiorari action reversing the action of the board of supervisors; and, in the equity action, the injunction as to Main street and Lake avenue was made perpetual, and as to the other streets and alleys, the petition was dismissed. It is from this judgment that the appeal is taken in this case. Reversed.Harl & Tinley, for appellants.

Flickinger Bros., for appellees.

SHERWIN, J.

It is apparent from the statement of this case that the controlling question involved herein is whether the board of supervisors had jurisdiction under the statute to vacate the streets and alleys in controversy. If they had statutory authority, another question which is made by the record is whether they had properly before them the parties necessary to...