Des Moines City Ry. Co. v. City of Des Moines

• Decision Date: 22 November 1927
• Docket Number: 38643
• Citation: 216 N.W. 284,205 Iowa 495
• Parties: DES MOINES CITY RAILWAY, Appellant, v. CITY OF DES MOINES et al., Appellees
• Court: Iowa Supreme Court

216 N.W. 284

205 Iowa 495

DES MOINES CITY RAILWAY, Appellant, v. CITY OF DES MOINES et al., Appellees

No. 38643

Supreme Court of Iowa, Des Moines

November 22, 1927

PETITION FOR REHEARING DISMISSED MARCH 6, 1928.

Appeal from Polk District Court.--O. S. FRANKLIN, Judge.

The plaintiff, Des Moines City Railway Company, brings this action in equity to restrain the defendants, the city of Des Moines, W. F. Mitchell, superintendent of the department of streets and public improvements, and John J. Stark contractor, from reducing the grade of a portion of Sixth Avenue in the city of Des Moines until suitable provision has been made for damages to the plaintiff. The facts are fully stated in the opinion. The petition of plaintiff was dismissed, and it appeals.

Affirmed.

Sargent Gamble & Read, for appellant.

Reson S. Jones, Eskil C. Carlson, Chauncey A. Weaver, and George W. Vest, for appellees.

Lehmann, Seevers & Hurlburt, for Stark, appellee.

STEVENS, J. EVANS, C. J., and FAVILLE and WAGNER, JJ., concur, KINDIG, J., concurring in result.

OPINION

STEVENS, J.

I.

Appellant, the Des Moines City Railway Company, owns and operates a system of street railways in the city of Des Moines. Sixth Avenue extends from the center of the principal business district of the city north across the Des Moines River to Highland Park, and perhaps to its northerly limits. On October 4, 1916, the appellee city adopted Ordinance No. 2525, which provides for the widening of Sixth Avenue from School Street to University Avenue, and for a change of grade therein between said points. No provision has been made by the appellee city to pay the expense necessary to be incurred by appellant in conforming its double-track street railway, located thereon, to the changed grade of said street.

Many propositions are earnestly argued by counsel, but the decisive questions which we deem it necessary to discuss may be briefly stated as follows: (a) Is a street railway an improvement on the streets of cities and towns of this state, within the legislative meaning of that term, as used in Section 785, Code of 1897? (b) If so, must provision be made by such cities or towns when it is desired to change the grade of any street traversed by the tracks of such railway company for the payment of the expense of conforming the same to the changed grade? (c) If negative answer is given to either, or both, of the foregoing propositions, is Ordinance No. 2525 so unreasonable and arbitrary as to be void and wholly unenforceable? Propositions (a) and (b) will be discussed together.

Prior to the enactment of Chapter 11, Laws of the Fourteenth General Assembly, hereinafter set forth, damages to abutting property resulting from the change of street grades were not recoverable in this state. Creal v. City of Keokuk, 4 G. Greene 47; Russell v. City of Burlington, 30 Iowa 262. The original enactment, slightly changed, was carried into the Codes of 1873, of 1897, and of 1924. For convenience, these statutes are here copied in full:

"Whenever any city or town in this state, authorized by law to establish and regulate the grades of the streets and alleys of such city or town, shall have established the grade of any street or alley, and any person shall have built or made any improvements on such street or alley according to the established grade thereof, and the city authorities shall alter said established grade in such a manner as to injure or diminish the value of said property, said city shall pay, to the owner or owners of said property so injured, the amount of such damage or injury." Chapter 40, Section 1, Acts of the Fourteenth General Assembly.

"When any city or town shall have established the grade of any street or alley, and any person shall have built or made any improvements on such street or alley according to the established grade thereof, and such city or town shall alter said established grade in such a manner as to injure or diminish the value of said property, said city or town shall pay to the owner or owners of said property so injured the amount of such damage or injury." Code of 1873, Section 469.

"When any city or town shall have established the grade of any street or alley, and any person shall have made improvements on the same, or lots abutting thereon, according to the established grade thereof, and such grade shall thereafter be altered in such a manner as to damage, injure or diminish the value of such property so improved, said city or town shall pay to the owner of such property the amount of such damage or injury." Code of 1897, Section 785.

The more important changes therein are indicated by the italicized portions thereof. It will be observed that the damages allowed by each section of the various revisions of the statute are for injury or damage to improvements "on such street or alley." The change in the phraseology of Section 785, Code of 1897, by substituting the word "same" for "street or alley" is of no significance; but the words following the same,--that is, "or lots abutting thereon,"--are necessarily of some significance, and must be given weight in the interpretation of the statute.

It is fundamental in the construction of statutes that words and phrases will, if possible, be given their ordinary and usual meaning (State v. Carson, 147 Iowa 561, 126 N.W. 698; State v. Read, 162 Iowa 572, 144 N.W. 310), and that such construction as will give effect to every part of the statute, except when irreconcilable because of repugnance, will be adopted. Des Moines City R. Co. v. City of Des Moines, 152 Iowa 18, 131 N.W. 43; McKinnon v. Sanders, 161 Iowa 555, 143 N.W. 407; Elks v. Conn, 186 Iowa 48, 172 N.W. 173; Model Laundry Co. v. Barnett, 180 Iowa 55, 162 N.W. 830. It is also proper to consider legislative history in arriving at a proper interpretation of a given statute. Des Moines City R. Co. v. City of Des Moines, 152 Iowa 18, 131 N.W. 43.

The legislative history of the change made in Section 469 of the Code of 1873, by the enactment of Section 785 of the Code of 1897, throws little light upon the legislative purpose in adding the words "or lots abutting thereon." The Code commission, appointed by the legislature to prepare the revision of 1897, proposed the following, in lieu of Section 469 of the Code of 1873:

"When the grade of any street, highway, avenue, or alley shall have been established and any person owning property abutting on such grade shall have made permanent improvements thereon in conformity to such grade, and afterwards the city or town shall alter such grade in such a manner as to diminish the value of said property, it shall pay the owner thereof the damages so caused, which shall be assessed in the manner provided for condemning land for city purposes."

The report of the Code commission referring thereto merely states that:

"Damages for change of grade are to be assessed according to the provisions applicable in case of condemning land."

The statute, as finally enacted by the twenty-sixth general assembly, appeared as Section 64 of a joint committee substitute for a house bill involving the same subject-matter. Nothing further appears in any of the records of the Code commission or of the proceedings of the twenty-sixth general assembly.

The word "on," as used in Section 469 of the Code of 1873, was construed by this court in Hempstead v. City of Des Moines, 52 Iowa 303, 3 N.W. 123, as follows:

"V. It is said the improvement must be made on the street. The statute evidently contemplates improvements upon lots which are situated on the street. The particle on, when used to designate a place, means at, near, adjacent to. This is obviously its import as used in the language of the statute under consideration."

This interpretation is well supported by the language of this court in Heath v. Des Moines & St. L. R. Co., 61 Iowa 11, 15 N.W. 573, and in numerous decisions of courts in other jurisdictions. Sutton v. Commonwealth, 85 Va. 128, 7 S.E. 323; Caldwell's Case, 86 U.S. 264, 22 L.Ed. 114; Burnam v. Banks, 45 Mo. 349; Masters v. McHolland, 12 Kan. 17; Bradley v. Bradley, 3 L. R. P. Div. 47; South Park Commissioners v. Chicago, B. & Q. R. Co., 107 Ill. 105.

Richardson v. City of Sioux City, 136 Iowa 436, 113 N.W. 928, was decided after the enactment of Section 785, Code of 1897. This was an action at law for damages resulting from a change in the grade of a street. The plaintiff had improved certain lots in Sioux City in conformity to an established street grade by the erection of buildings thereon, the construction of a retaining wall, and the planting of trees on the parking in front thereof. A somewhat more literal meaning was given the word "on" in this case than in our previous decisions. This was to meet the claim of the plaintiff that he was entitled to compensation for the loss or injury to shade trees planted and maintained by him on the parking in front of his lots. The court, in the course of its opinion in that case, said:

"It is within common knowledge that street parkings--that is, a space left between the curb line and walk, and quite universal in residence districts--are intended by the city and in a sense dedicated, for the purposes of street and property adornment. Following the establishment of a grade, every abutting owner is invited, impliedly, at least, to improve such parking by sodding the space in front of his property, and by planting trees, etc., thereon. And, in doing this, he not only improves the street, but in a substantial sense his own property. It is not unreasonable, in our view, to say that such was in the mind of the legislature when providing that damages should be recoverable when the abutting owner 'shall have made improvements on the same ...