City of Fairfield v. Dashiell
| Decision Date | 20 June 1933 |
| Docket Number | No. 41924.,41924. |
| Citation | 249 N.W. 236,217 Iowa 474 |
| Parties | CITY OF FAIRFIELD v. DASHIELL, District Judge. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Certiorari from District Court, Jefferson County; George W. Dashiell, Judge.
Certiorari proceedings to review an order made by the defendant in the case of Wheatley v. City of Fairfield, 213 Iowa, 1187, 240 N. W. 628.
Writ sustained.
Thoma & Thoma, of Fairfield, for respondent.
At all times in controversy herein, John W. Wheatley was the owner of a farm consisting of 357 acres. To the south thereof, with a highway intervening, the city of Fairfield was the owner of a quarter section of land. A small natural water course ran across the land of the city and Wheatley in a northerly and southerly direction.
In the spring of 1925, the city of Fairfield was desirous of creating a reservoir, known in the record as No. 3, for impounding water for use in its waterworks. The dam was constructed across said waterway at a point about 120 rods south of the highway, and was 175 yards long and 20 feet high. After construction of the dam, the water impounded thereby overflowed on part of Wheatley's land, and on February 11, 1929, he filed a petition in equity asking that the nuisance created and maintained by reason of defendant's construction of said dam be enjoined, and he asked judgment against the defendant for damages in the sum of $4,000.
After the commencement of that action, the city of Fairfield instituted condemnation proceedings against the plaintiff and his land, resulting in an award of $34,310.83. From this award an appeal was taken by the city to the district court. In the district court the appeal from the condemnation case was consolidated with the equity case for the purpose of trial, which resulted in a decree on June 16, 1930, so far as the condemnation case was concerned, which fixed the damages at $18,307.34. In the equity case the decree was in part as follows:
“The defendant, City of Fairfield, within four months from and after this date, shall pay to the plaintiff, John W. Wheatley, the amount of the award this day made by this court in favor of John W. Wheatley v. City of Fairfield, Iowa, in law action 9344, the same being $18,307.34, together with interest thereon at the rate of six per cent per annum from and after this date.
Or, in the event the defendant, City of Fairfield shall appeal the said award of this court * * * to the Supreme Court of Iowa, then said City of Fairfield shall, within four months from and after this date, file with the clerk of this court a supersedeas bond guaranteeing to the plaintiff, John W. Wheatley the payment of the amount of said award * * * or such amount as shall ultimately be determined to be due to the said John W. Wheatley by reason of the condemnation of said Wheatley's land. * * * And it is further ordered that in event the defendant, City of Fairfield, Iowa, shall fail to pay said award or take an appeal to the supreme court of Iowa, from the award made by this court in said law action No. 9344, and file bond as hereinbefore provided for within four months from and after this date, then a writ of injunction shall issue under the seal of this court restraining the City of Fairfield, Iowa, by and through all of its proper officers, from in any manner using or occupying for waterworks purposes, or any other purpose, the lands of the plaintiff described as follows: [Here follows a description of Wheatley's land.]”
Both of these cases were appealed to the Supreme Court, and an opinion was rendered therein on February 9, 1932. Wheatley v. City of Fairfield, 213 Iowa, 1187, 240 N. W. 628. The action of the district court was affirmed in both cases.
On November 21, 1932, plaintiff filed in the office of the clerk of the district court of Jefferson county, Iowa, in the equity case of Wheatley v. City of Fairfield, a motion for the issuance of a writ of injunction, and for an order requiring the sheriff to remove the dam above referred to, alleging that the city had wholly failed to pay said award but continued at all times thereafter to maintain said dam and to flood the lands owned by the plaintiff involved therein, and alleging that the plaintiff was entitled to a writ of injunction to restrain the defendant from continuing to use, occupy, and flood plaintiff's land until the damages, as fixed by the award, had been paid to the plaintiff, and asking for fixing of time and place for hearing this motion and prescribing notice to be given therefor.
The hearing was set for December 3, 1932, and notice given accordingly. On November 30, 1932, the city appeared and filed a resistance to this motion, alleging that the city of Fairfield had drained from all portions of said (Wheatley's) land upon which water had been so obstructed as to be caused to remain thereon because of the construction of the dam on the defendant's own premises, and asserting that the decree was a full and final adjudication of the rights and remedies of the parties to said cause and could not be modified or changed by the court without showing that there had been a change in the facts and circumstances under and upon which said cause was decided, further alleging: “This court is without jurisdiction or power to modify or change the terms or provisions of said decree at this time for the reason that no showing has been made, that change has occurred in the facts and circumstances connected with said cause, and there has in fact been no change in the facts and circumstances connected with said cause of action, except that the City has removed the water from said premises, and is not now occupying any part of said premises, either directly or indirectly.”
This matter came on for hearing December 8, 1932, and a reporter's transcript of all evidence taken on the original submission in both the equity and the law action was introduced in evidence. It was also shown that the city of Fairfield by official action on April 21, 1932, “directed the city engineer to at once drain sufficient water out of said reservoir No. 3 to avoid holding the water on John Wheatley's land.”
The evidence shows that the city put in what was called “a valve” through the dam to let out part of the water impounded thereby, but the valve did not work automatically and had to be opened and closed by hand and did not wholly free Wheatley's land from flooding.
After the decision by the Supreme Court in the appeal, the city formally abandoned the condemnation proceedings.
The district court on this hearing found that plaintiff's motion should be sustained, and a mandatory writ of injunction should issue for the removal of the dam, and, if the same were not removed by the city within thirty days from the filing of the decree, the sheriff of Jefferson county should be directed to enter upon said premises and remove the same, unless, prior to the expiration of said thirty days, the defendant should pay into the hands of the clerk of that court, for the benefit of this plaintiff, the amount of award fixed by Judge Smith in the condemnation case and affirmed by the Supreme Court. It was further ordered: “This court retains jurisdiction of this cause for the enforcement of all of the provisions of this decree, and in the event said dam shall be removed as provided for herein, this court expressly retains jurisdiction of this cause and the parties thereto for the determination of plaintiff's damages to his land up to the date of the removal of said dam.”
A supplemental decree was entered accordingly.
Such injunction was duly issued on the 30th day of December, 1932, whereupon, on the 10th day of January, 1933, a petition for writ of certiorari was filed in this court and an order granting the same was made on January 17th following.
Section 12456, Code 1931, reads as follows: “The writ of certiorari may be granted when authorized by law, and in all cases where an inferior tribunal, board, or officer exercising judicial functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally, and there is no other plain, speedy, and adequate remedy.”
The controlling question raised by the petition in this proceedings is whether or not the district court in making the order he did “exceeded his proper jurisdiction or otherwise acted illegally.”
The petitioner insists that the decree entered on June 16, 1930, is the final decree and is conclusive as to all matters in issue or which might have been adjudicated, and therefore the court had no jurisdiction to entertain or act upon the motion last filed in the case under which the court ordered a mandatory injunction.
To a fair determination of this question, we turn to the decree and find it is therein provided, among other things, that, in cases of an appeal, first, a supersedeas bond should be filed within four months in the condemnation case; ““and it is further ordered that in event the defendant, City of Fairfield, Iowa, shall fail to pay said award or to take an appeal to the Supreme Court of Iowa from the award made by this court in said law action 9344, and file a bond as herein provided from and after this date, then a writ of injunction shall issue * * * restraining the City * * * from in any manner using or occupying for waterworks purposes or any other purpose the land of the plaintiff described as aforesaid.” (Here follows a description of plaintiff's land.)
This is the only provision in the decree with reference to an injunction. The record shows that a supersedeas bond was filed within the time provided, and an appeal taken. This having been done in compliance with the decree, there is nothing left in the decree finding the plaintiff entitled to or authorizing the issuance of an...
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