Chrisman v. Omaha & C. B. Ry. & Bridge Co.
| Decision Date | 15 June 1904 |
| Court | Iowa Supreme Court |
| Parties | CHRISMAN ET AL. v. OMAHA & C. B. RY. & BRIDGE CO. ET AL. |
OPINION TEXT STARTS HERE
Appeal from Superior Court of Council Bluffs; G. H. Scott, Judge.
In 1881 the Missouri river, which had been flowing in a northeasterly direction, and then curving around to the south, suddenly abandoned its old channel, and cut a new one in the Nebraska side, more directly south. The eastern extremity of the abandoned bed filled with water, and has since been known as “Lake Manawa.” In 1887 the land bordering on the lake to the north was platted into lots, streets, and alleys. Many of the lots were disposed of and improved. Later the Lake Manawa Railway Company constructed a railway for the carriage of passengers from Council Bluffs to the lake. A town known as “Manawa Park” was incorporated in 1888, but the organization was subsequently declared illegal. The Omaha, Council Bluffs & Suburban Railway Company acquired the property of the Lake Manawa Company, and on August 17, 1900, petitioned the board of supervisors of Pottawattamie county to vacate the following streets of the plat: Portland avenue, lying west of Third street; South Fourth street, south of Park avenue; and some others not involved in this action. The vacation was ordered as prayed. What appears on the map as “Vacated County Road” was regularly vacated November 15, 1900. At this time the railroad company owned, and had inclosed by fence, blocks 27, 28, 29, and 30, and all of 33 and 34 out of the water. Subsequently it acquired block 31, and on the 18th of April, 1902, by resolution of its board of directors, ordered that it be vacated, and proceeded to include it within its inclosure with a tight fence, eight feet high. Thereupon the plaintiffs begun this action to enjoin the closing of South Third and certain other streets. The plaintiff Beck is owner of lots 17 and 18, and leases lot 16 in block 26. On these he operates a saloon, and lives in a cottage. Ballow owned lot 15, where he lived and kept a restaurant. Chrisman and Robards own the greater part of the lots outside of the inclosure, and rent to dfferent tenants. The last company named has transferred its property to the Omaha & Council Bluffs Railway & Bridge Company since suit was commenced. On hearing, the court entered decree as prayed as to Park avenue and South Third street, and denied relief as to the others. Both parties appeal, that of defendants being first perfected. Affirmed.
The following is the map referred to:
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Wright & Baldwin and Harl & Tinley, for appellants.
Flickinger Bros., for appellees.
Before a highway is vacated, the statutes require the county auditor to appoint a commissioner to examine into the expediency of such a course, and that within 30 days such commissioner file his report in the auditor's office. Section 1486 et seq., Code. The appellee contends that several of the roads vacated within defendant's inclosure, though mentioned in the petition for vacation, were not named in the commissioner's appointment or report. The record of the auditor, as set out in the abstract, reads that “the auditor appointed Ernest E. Cook commissioner to view and report upon the proposed vacation, who on September 29, 1900, reported, recommending the vacation petitioned for.” Appellee, in an amendment to the abstract, sets out what purport to be copies of the appointment and report, but the transcript filed fully sustains the defendant's denial that these were ever introduced in evidence. The proceedings appear from the abstract to have been regular, and the vacation legal.
2. Appellee insists, however, that this evidence was not admissible, inasmuch as the defense that the streets had been vacated was not specially pleaded. The petition averred the establishment and continued use of the streets up to the time of bringing suit, and that the attempt to close them was “without authority in law or in right,” and “without sanction from the proper authorities.” The general denial put these allegations in issue, and proof that the streets had been vacated and inclosed by the owners of the abutting lots was entirely in point in meeting them.
3. After defendant had acquired block 31, it, by an appropriate resolution of its board of directors, ordered the vacation of South Third street from Portland avenue south, and proceeded to inclose that part of it with its other grounds. Two objections are made to the validity of these proceedings: (1) That such street was a highway, and for this reason could not be vacated by the proprietors of a part of the plat; and (2) that the vacation of the street would abridge the rights and privileges of the plaintiffs. Section 919 of the Code provides that “any part of the plat may be thus vacated provided it does not abridge or destroy any right or privilege of any proprietor in said plat, but nothing contained in this statute shall authorize the closing or obstruction of the highways.” The reference is to the preceding section, which reads: The plat here contemplated is authorized and defined in the four sections previous, the last of which (section 917) declares that, when acknowledged and recorded, “such acknowledgment and recording shall be equivalent to a deed in fee simple of such portion of the premises platted as is set apart for streets or other public purposes.” From these different sections it is manifest that the word “street” is used to designate the spaces left between the lots for public travel. The title thereto does not vest in the city or town prior to its acceptance, and until...
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