City of Marshalltown v. Forney

• Decision Date: 03 October 1883
• Citation: 16 N.W. 740,61 Iowa 578
• Parties: THE CITY OF MARSHALLTOWN v. FORNEY
• Court: Iowa Supreme Court

16 N.W. 740

61 Iowa 578

THE CITY OF MARSHALLTOWN v. FORNEY

Supreme Court of Iowa, Davenport

October 3, 1883

Appeal from Tama Circuit Court.

BLOCK No. 10, in the city of Marshalltown, is composed of twelve lots, of which six front upon a street upon the north, and six front upon Main street upon the south. Through this block an alley runs east and west. Another alley, sixteen and a half feet wide, also extends north and south through the block, between lots 3 and 4 and 9 and 10. The defendant owned two twenty-feet building lots on the west, and one on the east, of this last named alley, said lots having a depth of one hundred and eighty feet. Forney caused to be represented to the city council that he would build a large and commodious opera house, in connection with stores, upon these lots, at a cost of from eighteen to twenty thousand dollars if the city would vacate the alley and allow him to use it for an entrance way to the opera hall. He also caused to be presented to the council the plan of the ground floor of a building, prepared by one Ellis, an architect, covering his three twenty-feet lots and the alley, and extending back the whole depth of the lots, being seventy-six and a half feet front and one hundred and eighty feet deep, with two store rooms in front, west of the alley, and one east of the alley and a circular opera room in the rear, with large stage, the entrance to the room being over the alley. This building Ellis represented could be erected for from $ 18,000 to $ 20,000. (The property owners in block 10 signed a paper stating that they were in favor of the vacation of the south half of the alley in said block, for the purpose of erecting an opera house thereon, and entrance thereto, and maintenance thereof. Thereupon, on the twenty-third day of December 1878, the city council adopted an ordinance as follows:

"An ordinance vacating the alley in the south half of block No 10, of the original town of Marshall, on conditions:

"SEC. 1. Be it ordained by the city council of the city of Marshalltown, that the alley described as follows, to wit, the alley running north from Main street in the middle of block No. ten (10), of the original town of Marshall, to the alley running east and west through said block, be and the same is hereby vacated, only upon the express conditions hereinafter following and expressed. That Henry Forney, his heirs or assigns, build and erect, within one year and six months from the passage of this ordinance, and maintain forever, an elegant and commodious opera house, of the value of at least $ 20,000, upon the adjacent lots and on said alley, and shall use said alley for said opera house and for an entrance way thereto, and for no other use or purpose, and shall pay all taxes and charges that may be hereafter assessed against said alley so vacated, municipal or otherwise.

"SEC. 2. This ordinance shall take effect and be in force only after its publication, and written acceptance of Henry Forney of the conditions thereof, filed in the city clerk's office within thirty days of its publication, and upon his failure so to file such acceptance as aforesaid within the said thirty days, then the above vacation and grant shall not become operative to vest any rights or privileges whatever."

The defendant accepted all the conditions of this ordinance on the ninth day of January, 1879. Subsequently the defendant was informed by Mr. Foster, a competent architect, that it would cost $ 40,000 to erect a building covering the entire depth of the lots, with an opera house in the rear. Finally he adopted a plan fifty-six and one-half feet front and ninety feet in depth, with two store rooms below and music hall above, the entrance being over the alley. The plans and specifications were left at the mayor's office in Marshalltown for inspection, and he received bids for construction, and they were there ten days before the contract was let. The defendant entered upon the alley and excavated it, in connection with his two lots, for a basement, and has erected thereon a handsome building, at a cost of about $ 16,000. In the second story he has constructed a large square room, with movable seats, but without parquette and galleries, well adapted for a music hall, but without sufficient staging for an operatic or theatrical performance. The room is, however, so constructed that a commodious stage may be erected over the building adjoining on the east, which the defendant owns. The building is also constructed with toothing, so that an opera house can be erected in the rear. The alley, before the passage of the ordinance in question, was muddy and unsightly, and a source of expense to the city. The defendant has constructed a substantial walk along the front of the alley, and has paid taxes thereon for the years 1879 and 1880, upon a valuation of $ 1,625.

The appearance of the city has been improved by the vacation of the alley and the erection of the building. In September 1880, the plaintiff commenced an action in equity, alleging that the ordinance was ultra vires, that the defendant had failed to erect any opera house whatever, and had failed to erect any structure upon the north fifty-six and one-half by one hundred feet of the lots and alley in question, and praying that the ordinance be declared void, and the premises be decreed to be an alley, and that the excavation and erection thereon be declared to be a nuisance, and the defendant be ordered to remove the same and make the alley passable. The court found that the ordinance in question was ultra vires and void from the beginning, and decreed that so much of defendant's building as...