Crowley v. Johnson County
| Decision Date | 14 December 1943 |
| Docket Number | 46343. |
| Citation | 12 N.W.2d 244,234 Iowa 142 |
| Parties | CROWLEY v. JOHNSON COUNTY et al. |
| Court | Iowa Supreme Court |
D C. Nolan, of Iowa City, for appellant.
Edward F. Rate and Wm. R. Hart, of Iowa City, for appellees.
When this action arose in 1942, plaintiff, Phillip P. Crowley, owned a certain 160 acre farm in Johnson County, Iowa, located about two miles south of Iowa City, Iowa. It was agricultural land having no buildings thereon. In this farm there were four 40 acre tracts all in one string running north and south. The tract is described as follows: East half of Southwest quarter, section 26, and east half of Northwest quarter, section 35, township 79 north, range 6 West of the 5th P. M. About a quarter of a mile west of plaintiff's land is a road running generally north and south and known as the Muscatine or Sand road. This road runs north to Iowa City. There are three roads from plaintiff's land connecting with this road. The one on the north end of the north 40 turns north at the northeast corner of such 40 and runs to Iowa City. At the south end of the south 40 there is a private road running west where it enters the Muscatine road a short distance west of the southwest corner of said 40.
The land immediately west of the south 80 acres was owned by D. J Ahern. Just north of the Ahern land was a 40 acre tract owned by Ida Stackman. Beginning at the west line of plaintiff's land and running west one-fourth of a mile between the Ahern and Stackman land was a 66 foot road. It entered the Muscatine road and ended there. This last described road between the Ahern and Stackman land is involved in the controversy herein.
Some months prior to December 7, 1942, D. J. Ahern, owner of the land west of the south 80 acres of plaintiff, and Ida Stackman, owner of the 40 acre tract just north of the Ahern land, petitioned the board of supervisors of Johnson County, Iowa, to vacate the road running between the land of Ahern and Stackman. The road petitioned to be vacated was known as I. N. Jerome's road and was recorded in Book 4, page 279 of the road records of Johnson County, Iowa, and described therein as follows: "Commencing at the southwest corner of the east half of the southwest quarter of section 26, township 79 north, range 6 west of the 5th P. M. in East Lucas Township, Johnson County, Iowa, extending thence west along the south side of the southwest quarter of the southwest quarter of said section 26 about one-fourth mile to the road known as Territorial Road from Burlington, Iowa." This road was laid out in 1856.
This petition was set down for hearing, notice was given plaintiff and on August 24, 1942 plaintiff filed objections to the petition for the vacation of said highway, alleging ownership of the land belonging to him, to which said road was connected, alleging that said road was a valuable asset or appurtenance to his 160 acre farm and was a necessary and convenient means of going to and from the center tracts of said farm when necessary to move heavy loads, heavy machinery, or drive livestock to and from said central sections, and further urged that if said road was vacated the center 40 acre tracts and the south 40 acre tract would be without any public highway, and in the event of a division of the farm, either by sale or partition, the value of said tracts and the various subdivisions thereof would be greatly depreciated, especially in the event the objector decided to sell or divide same into smaller tracts. He further stated that if the farm was divided the described road was an absolute necessity to the center tracts thereof and that its vacation would decrease the value of said farm at least $5 per acre and of the center tracts at least $10 per acre or $800 for the entire farm. In conclusion the objector states: "This claimant objects to the vacation of the road and in the event the Board of Supervisors decides to vacate the same, irrespective of objections, he claims damages to his entire farm in the amount of $800." These objections were signed by Phillip P. Crowley.
On December 7, 1942, at a hearing before the Board of Supervisors, upon petition for vacation filed, all parties interested were present with counsel, evidence was taken, and thereupon the Board of Supervisors granted the petition for vacation of said road and in their order recited that they had heard the statements of counsel for all of the parties, that they had investigated the matter thoroughly and that Phillip P. Crowley would suffer no damage by reason of the vacating of said road; also that to require the continuance of said road at the possible expense of Johnson County, Iowa, of opening and maintaining the same in view of the probable use thereof, and in view of the past use thereof, would be unreasonable and unwarranted and that in the opinion of the Board of Supervisors the vacation of said road was desirable and proper and it was so ordered.
Thereafter, plaintiff brought the present action in equity wherein he asks that the Board of Supervisors be temporarily and permanently enjoined from further proceedings to close or vacate the road in question, or in any manner interfering with plaintiff's full use and enjoyment thereof and for other and further relief as may be just and equitable in the premises, including the assessment of damages against defendants in their representative and individual capacities for damages sustained by the plaintiff on account of wrongful and wilful acts of the defendants.
Plaintiff attached to his petition a copy of the petition for vacation of the road in question and a copy of his objections thereto and recited that each was "made a part thereof."
In his petition, plaintiff described his land, the road in question, its establishment and use, his appearance before the board at the time of the hearing, alleging that he orally protested and objected to the closing of said road. Paragraph 6 of his petition reads as follows: "That the aforesaid Board of Supervisors of Johnson County, Iowa, did arbitrarily and without just cause or reason order the vacation of said road, to the damage and injury of this plaintiff as hereinafter set out." The damage and injury set forth were substantially the same as he set forth in his objections.
Paragraph 9 of said petition is as follows: "That if the aforesaid road is vacated and closed this plaintiff will suffer irreparable damage and injury and he has no adequate remedy at law."
Later, and on February 11, 1943, all of the defendants except D. J. Ahern and Ida Stackman, made a motion to dismiss the petition and set up in said motion five grounds therefor, which grounds are in substance as follows:
1. That the Board of Supervisors of Johnson County, Iowa, has complete discretion in the matter of vacating highways under the provisions of Chapter 237 of the Code and plaintiff has no equitable grounds to interfere or invoke the jurisdiction of a court of equity to restrain the exercise of such discretion under statutory authority.
2. That plaintiff has an adequate remedy at law under the provisions of said chapter and his rights and remedies are limited therein by the terms thereof.
3. That the facts stated in the petition do not entitle plaintiff to the relief demanded for the reason that the Board of Supervisors has the right to vacate highways subject to the terms, limitations and conditions imposed by Chapter 237 and plaintiff's rights and remedies are fixed and specified by said provisions.
4. That there is another action pending between the same parties for the same cause and the court's attention is called to a transcript filed in the office of the clerk of this court by the auditor of Johnson County, Iowa, showing that Phillip P. Crowley has appealed from the action of the Board of Supervisors of Johnson County, Iowa, in connection with the vacation of the road described in plaintiff's petition, together with notice of appeal signed by plaintiff as provided in Section 4599 of the Code and that said appeal has been docketed and his cause is now pending in this court.
5. That plaintiff filed objections to the original application to vacate this road, appeared at the hearing, submitted to the jurisdiction of the Board of Supervisors under Chapter 237 of the Code of Iowa and had elected his remedy.
On February 13, 1943, D. J. Ahern and Ida Stackman filed a motion to dismiss plaintiff's petition and in substance alleged the same grounds as are set forth in the motion to dismiss filed by other defendants.
At the time the motions to dismiss were submitted, it was agreed in open court by the attorneys for all parties that the court in passing upon these motions might take judicial notice of the pleadings and files in plaintiff's appeal from the action of the board denying damages as shown in cause No. 29541.
On May 5, 1943, the lower court filed a written ruling setting forth its conclusions and sustaining both motions, dismissing the petition of plaintiff and taxing the costs accordingly. To this ruling the plaintiff excepted. Plaintiff refused to plead further, electing to stand upon his petition and same was ordered dismissed. Plaintiff appealed to this court.
The gist of the ruling of the lower court is to the effect that it appears from the petition and from ...
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