Gable v. City of Cedar Rapids

• Decision Date: 07 February 1911
• Citation: 150 Iowa 108,129 N.W. 737
• Parties: GABLE ET AL. v. CITY OF CEDAR RAPIDS.
• Court: Iowa Supreme Court

150 Iowa 108

129 N.W. 737

GABLE ET AL.

v.CITY OF CEDAR RAPIDS.

Supreme Court of Iowa.

Feb. 7, 1911.

Appeal from District Court, Linn County; W. H. Treichler, Judge.

Action to vacate certain streets and alleys. There was a judgment vacating same, and the city appeals. Reversed.Wm. Chamberlin, Barnes & Chamberlain, and F. C. Byers, for appellant.

Deacon, Good, Sargent & Spangler, for appellees.

SHERWIN, C. J.

This is a proceeding to vacate F avenue between Seventeenth street and Nineteenth street, Eighteenth and Nineteenth streets between E avenue and F avenue, and an alley running east and west through the center of block 2 of Mound View addition, all within the corporate limits of the city of Cedar Rapids. There was a judgment vacating F avenue, Eighteenth street, and the alley, but reserving to the city the right to use the same for the extension of its water and sewer systems. The action is based upon section 920 of the Code, which provides as follows: “Whenever the owners of any tract of land which has been platted into town lots, and the plat of which has been recorded, shall desire to vacate the plat or a part thereof, a petition, signed by all the owners of it or the part to be vacated, shall be filed in the office of the clerk of the district court of the county in which the land is situated, returnable at the ensuing term, and notice thereof given at least four weeks, by posting notices in three conspicuous places in the town where the vacation is prayed, and one upon the door of the courthouse of the county. At the term of court next following the filing of the petition and notice, the court shall fix a time for hearing the petition, and notice of the day so fixed shall be given by the clerk in some newspaper published in the county at least one week before the day appointed for the hearing. At the hearing of the petition, if it shall appear that all the owners of lots in the plat or part thereof to be vacated desire the vacation, and there is no valid objection thereto, a decree shall be entered vacating such portion of the plat, and the streets, alleys and avenues therein, and for all purposes of assessment such portion of the town shall be as if it had never been platted into lots; but if any street as laid out on the plat shall be needed for public use, it shall be excepted from the order of vacation and shall remain a public highway. Vacations made under this chapter shall not be construed to affect any lands lying within any city or town which have been dedicated or deeded to the public for parks or other public purposes.” F avenue runs east and west; its east end being at Nineteenth street. E avenue is parallel with F avenue one block south and Eighteenth and Nineteenth streets run north and south, and terminate at the north at F avenue. Seventeenth street is west of Eighteenth street, and extends north from F avenue in a northeasterly direction as North Seventeenth street. The land south of E avenue between Seventeenth and Nineteenth streets is platted and used for residence purposes. The same is also true as to the land west of Seventeenth street, fronting both on F avenue and Seventeenth street. F avenue east of Seventeenth street and Eighteenth and Nineteenth streets north of E avenue have not been opened or improved, and at least a part of F avenue east of Seventeenth street has been fenced for a good...