City of Cherokee v. Illinois Central Railroad Co.

• Citation: 137 N.W. 1053,157 Iowa 73
• Parties: THE CITY OF CHEROKEE, Appellant, v. THE ILLINOIS CENTRAL RAILROAD COMPANY, et al., Appellee
• Decision Date: 25 October 1912
• Court: United States State Supreme Court of Iowa

137 N.W. 1053

157 Iowa 73

THE CITY OF CHEROKEE, Appellant, v. THE ILLINOIS CENTRAL RAILROAD COMPANY, et al., Appellee

Supreme Court of Iowa, Des Moines

October 25, 1912

Appeal from Cherokee District Court.--HON. WM. HUTCHINSON, Judge.

Reversed.

William Mulvaney, for appellant.

Helsell & Helsell, Molyneux & Maher, and Blewett Lee, and W. S Horton, for appellees.

OPINION

THE opinion states the case.--Reversed.

WEAVER, J.

The defendant's line of railroad passes through the city of Cherokee, and of necessity crosses the streets which intersect its right of way. On December 19, 1900, the plaintiff city by its solicitor filed herein a petition alleging that at the point where said railroad crosses Second street, a public highway, defendant, acting without authority so to do, had erected abutments on either side of said street, each extending thirteen feet into the public way and wholly obstructing the sidewalks, and that within the remaining space within these abutments defendant was in the act of erecting others, thereby further obstructing the public use of the way. It further alleged that said work of obstruction had been done or was being done notwithstanding the company had been warned and ordered by the city not to do so. On this showing a temporary injunction was asked to restrain the further prosecution of the work, and that upon final hearing the injunction be made permanent. A temporary injunction was issued. Motion was thereupon filed by the defendant to vacate the writ, stating several grounds thereof, among which was an allegation that the action had been begun by the city solicitor without authority granted by the city council, which statement was supported by the affidavits of the mayor and three aldermen. The motion to dissolve the injunction was sustained December 21, 1900; the ground of the ruling not being stated.

On January 7, 1900, defendant filed a motion to require the solicitor, William Mulvaney, to show his authority for his appearance in the action, and to dismiss such action as having been begun without authority. In support of the motion reference was made to the affidavits filed in connection with the motion to dissolve the injunction. In resistance to this motion, the solicitor presented the record of a resolution adopted by the city council on November 7 1900, as follows "Moved and seconded that the obstruction or nuisance on North Second street, which is placed there by the Illinois Central Railroad Company, be ordered abated at once and that the proper notice be served upon said company. Vote--Webber, yes; Nicholson, yes; Wilkie, yes; Reigle, yes; Lockyer, yes; Paterson, not voting. Motion carried."

There was a further showing by affidavits of members of the city council to the effect that, immediately after the passage of this motion and in the presence of the council, the mayor directed the solicitor to look after or take charge of the matter, and that said order had never been rescinded. The solicitor added to his own affidavit to the same effect, and averred that in bringing the action he acted upon authority given by the council and the order of the mayor, and that such authority was still unrevoked. The defendant thereupon responded with a motion to strike parts of the affidavits.

In rebuttal of the matter stated in such affidavits, defendant filed a certified copy of a resolution alleged to have been adopted by the city council under date of January 2, 1901, as follows:

Be it resolved by the city council of Cherokee, Iowa in regular session assembled, that the resolution of this council heretofore passed on the 7th day of November, 1900, which read as follows: 'Moved and seconded that the obstruction or nuisance on North Second street, which is placed there by the Illinois Central Railroad Company, be ordered abated at once, and that the proper notice be served upon said company,' be and the same is hereby rescinded, annulled, and canceled, and that the action taken by said city council giving authority to the Illinois Central Railroad Company to build its new railroad bridge at what is known as Second street crossing over said Second street in the manner and after the plans as shown by the map heretofore filed by said company with the city council and which said plan and map of said proposed new bridge across said Second street was by resolution of the city council, duly approved, be changed as follows: 'And be it further resolved that the plan of erecting said bridge over said crossing and the occupancy of a portion of said Second street on each side for abutment purposes as the same are now constructed, according to the plans herewith submitted and filed with the city council be and the same is hereby adopted and approved.'

It is also agreed to by the said Illinois Central Railroad Company that they shall provide and maintain two incandescent lights which are to be placed in the vicinity of the aforesaid bridge, and, at the direction of the city council, that they shall also construct the sidewalk on the outside of the piers or abutments--that is, next to the company's right of way--they shall also provide a protection so as to keep the dirt from falling from the embankment on the sidewalk, and shall also drive the first row of piling which are shown to the diagonal, parallel with and clear of the sidewalk.

It was moved by Reigel and seconded by Webber that said resolution as read be adopted and approved. The motion being put to a vote, the yeas and nays were called for, and each alderman cast his vote as follows: Webber, yes; Paterson, yes; Reigel yes; Wilkie, no; Lockyer, no; Nicholson, no. The result being announced and found to be a tie, the mayor cast his vote in favor of said motion, and the motion declared carried, and said resolution was declared adopted....