City of Council Bluffs v. Stewart

• Decision Date: 12 June 1879
• Parties: CITY OF COUNCIL BLUFFS, APPELLANT, v. JOHN T. STEWART, APPELLEE.
• Court: Iowa Supreme Court

51 Iowa 385

1 N.W. 628

CITY OF COUNCIL BLUFFS, APPELLANT,

v.JOHN T. STEWART, APPELLEE.

Supreme Court of Iowa.

Filed June 12, 1879.

Appeal from Pottawattamie district court.

On the eighth day of January, 1879, the plaintiff filed a petition, in substance alleging that about the month of October, 1878, the plaintiff, by virtue of authority vested in it by law, determined to open up a certain street or avenue from the intersection of Chestnut and Broadway streets to the Union Pacific depot in said city, and ordered the condemnation of private property for the establishment and opening of said street; that the defendant was the owner of certain real estate in the City of Council Bluffs over and across which the said avenue would pass; and the plaintiff caused notice to be served on defendant of the appropriation of his real estate for said avenue, and that the same would be condemned on the twenty-fourth day of December, 1878, and a jury would be empaneled to assess and award the defendant the damages which he would sustain; that a jury, properly empaneled for that purpose, awarded to defendant damages in the sum of one thousand four hundred dollars; that on the twenty-fifth day of December, 1878, the plaintiff placed in the hands of the sheriff of Pottawattamie county the said sum of one thousand four hundred dollars for the use of the defendant, for the appropriation of his real estate, which sum defendant refused to accept in payment for said property; that after the condemnation proceedings and the payment of the money to the sheriff, the defendant refused to vacate and surrender to plaintiff the possession of said lots, but took possession of the buildings thereon, which are ice houses, and is filling them with ice, and he has trespassed and is continuing to trespass upon the said property of plaintiff, a continuance of which trespasses will greatly retard the opening of said avenue, and cause irreparable injury to the plaintiff; that plaintiff is now ready, and will have immediate funds for the opening of said avenue, and that if the defendant is allowed to use said premises for the packing of ice or other purpose the plaintiff will be delayed in making such improvements, and that the acts of the defendant are for the purpose of causing such delay. The plaintiff asks that a temporary injunction issue, refraining the defendant from packing ice, or otherwise occupying and using said premises, and that, by final decree, the writ be made perpetual. On this petition an order was made by the district judge, without notice to the defendant, granting a temporary writ of injunction, as prayed.

On the tenth day of January, 1879, the defendant filed an amended cross-petition. The answer denies that defendant refused to yield possession of the property in controversy, for the purposes of which it is alleged to have been condemned; denies that any demand was ever made upon him for the property; denies that he was ever notified of the amount of the award of the sheriff's jury, or that the amount of said award had been deposited with the sheriff; denies that he has done any act whatever in relation to the property in controversy for the purpose of hindering or delaying the plaintiff in the opening and establishing of Union avenue, and denies that anything he has done has hindered or delayed plaintiff in that respect in any manner.

The answer alleges that all the defendant has done has been for the purpose of preventing great and irreparable injury to himself; that said proposed avenue is some two miles in length, and that although all the property embraced within the limits of said avenue is to be condemned, or the right of way otherwise provided for, no right of way has been procured, either by purchase or condemnation, for any portion of said avenue, except of the said property of defendant, which is situated about midway of said avenue; that the pretended condemnation was not made, because there was any present public necessity therefor, but for the purpose of annoying the defendant, and to cause great and irreparable injury to his business; that defendant has been informed that the said sheriff's jury awarded defendant only the sum of one thousand four hundred dollars, of which amount nine hundred and fity dollars is for the buildings, which alone are of the actual value of three thousand dollars; that the said property consists of five large ice houses and the property on which they are situated, which are of imperative necessity in defendant's business as a pork packer; that to have replaced them and have them ready for immediate use was impossible, and if the same could have been done, it would have been done at an expense of not less than three thousand dollars; that it was impossible for defendant to take that amount out of his business at this season of the year, without great and irreparable injury thereto; that said houses are annually filled with ice absolutely necessary in his business, which must be gathered and packed therein whenever it shall be in suitable condition for putting up; that for several years last past the winters have been so mild, and so little good ice has been found, that it has been almost impossible for defendant to secure ice for his business; that long before the date when the first condemnation proceedings were had, he had made a contract with one J. H. Lewis to fill his ice houses with ice as soon as it should be in proper condition; that about the time it is said the money was paid into the hands of the sheriff, the weather for the first time during the winter became cold, and the ice in suitable condition for packing; that Lewis insisted on filling his contract, and refused to release defendant therefrom without the payment of heavy damages, and it was then too late for the defendant to make any other agreements for putting up ice; that upon receiving information that one thousand four hundred dollars had been paid into the hands of the sheriff, defendant made effort to contract with the builders of the city to put up new ice houses, but could make no contracts with them to that end, because of the fear that the cold weather would interrupt their work, and prevent them from fulfilling their contract; that it was absolutely necessary that the ice should be put up at once, because of the danger that mild weather would return and render the ice then formed unfit for use, and prevent him from procuring the necessary ice for his business; that he had already slaughtered many thousand hogs, and had contracted and made arrangements to slaughter many thousands more, and that should he fail to procure the necessary ice for use in his business, he would be liable to lose the entire investment in the present season's packing, amounting to hundreds of thousands of dollars.

The cross-petition of defendant states in substance that defendant is a resident tax-payer of the City of Council Bluffs; that the avenue proposed to be constructed by plaintiff runs through and totally destroys defendant's property; that the city has no money in its treasury, and no means of deriving any from its general revenue for the opening and constructing said avenue, and that to put it in condition to be of any use to the city or the public an expenditure of one hundred and fifty thousand dollars will eventually be required; that the common council submitted the proposition to the voters of the city to negotiate the bonds of the city to the amount of twenty-five thousand dollars, to raise money to open said avenue, and the issuance of said bonds was authorized; that the amount of said bonds will not be sufficient to do more than pay for the right of way, leaving the additional expense to be otherwise provided for, which cannot be done out of the ordinary revenues because it requires the full tax levy authorized to meet the current running expenses of the city government; that at the time the council was authorized to issue said bonds the value of the taxable property in said city was about three hundred thousand dollars, and the permanent indebtedness, including bonds, warrants and other indebtedness due and unpaid, and excluding the current running expenses, amounted to about one hundred and seventy thousand dollars, being in excess of the five per centum of such valuation, and that under the provisions of the constitution the city has no authority to issue said bonds; that, as the defendant is informed, the authorities of the city have already issued a portion of said bonds and are about to issue the rest of them. The defendant prays that the temporary injunction issued against him may be dissolved, and that an injunction issue restraining the plaintiff from issuing any portion of said bonds.

The plaintiff replied, setting forth the ordinance under which it was proposed to issue the bonds in question, and a detailed statement of the financial condition of the city, from which it is claimed that the issuance of the bonds in...