Gardner v. Charles City

• Decision Date: 20 September 1966
• Docket Number: No. 52149,52149
• Citation: 259 Iowa 506,144 N.W.2d 915
• Parties: Walter L. GARDNER et al., Appellants, v. CHARLES CITY, Iowa, Lee Albaugh, Mayor, Carl Clancy, Wally Hladky, John Sebern, Cecil Galloway, Fred Newton and Clarence Gage, Members of the City Council, and Iowa State Highway Commission, Appellees.
• Court: Iowa Supreme Court

Page 915

144 N.W.2d 915

259 Iowa 506

Walter L. GARDNER et al., Appellants, v. CHARLES CITY, Iowa, Lee Albaugh, Mayor, Carl Clancy, Wally Hladky, John Sebern, Cecil Galloway, Fred Newton and Clarence Gage, Members of the City Council, and Iowa State Highway Commission, Appellees.

No. 52149.

Supreme Court of Iowa.

Sept. 20, 1966.

Larson & Carr, Charles City, for appellants.

Zastrow, Noah & Smith, Charles City, for appellees except Iowa State Highway Commission.

James E. Graham, Asst. Atty. Gen., for appellee Iowa State Highway Commission.

GARFIELD, Chief Justice.

Plaintiffs own homes in Charles City proposed to be taken or damaged by defendants, city and state highway commission, for the purpose of widening the public street incident to relocating U.S. Highway 18 for about four blocks through the city. They brought this suit in equity to enjoin defendants from proceeding with the proposal On defendants' motion the trial court dismissed the petition on the ground it alleged insufficient ultimate facts to warrant relief. Plaintiffs have appealed. We affirm the decision.

Contents of plaintiffs' original petition, except as restated in the amended one, may be disregarded since their sole reliance here is upon the two counts of their amended petition. They allege the city and commission have entered into negotiations under which Highway 18 will be relocated for about four blocks through the city and cross the Cedar River on a new bridge to be built by the commission at Brantingham Street which is to be widened to 49 feet to provide four traffic lanes; the city proposes to furnish the right-of-way for widening the street; to do so it must purchase or condemn homes of 11 plaintiffs, relocate the sewers, and change the grade to the damage of the homes not taken.

Count I of the petition proceeds to state the proposed acts of the city are contrary to Iowa laws, unreasonable, unnecessary, arbitrary and unjust.

Count II goes on to allege plaintiffs are informed and believe the city has no funds for purchase of the right-of-way; it must pledge its credit therefor contrary to Iowa laws, and to do so is unnecessary, arbitrary and unjust.

I. Some settled rules of pleading may be mentioned at the outset. Where as here a doubtful pleading is directly attacked by motion before issue is joined or in the answer as permitted by rule 72, Rules of Civil Procedure, it will be resolved against the pleader. Winneshiek Mutual Ins. Ass'n. v. Roach, 257 Iowa 354, 132 N.W.2d 436, 444, and citations; Halvorson v. City of Decorah, 258 Iowa ---, 138 N.W.2d 856, 860, and citations; White v. Flood, 258 Iowa ---, 138 N.W.2d 863, 866. See also Harvey v. Iowa State Highway Comm., 256 Iowa 1229, 1230, 130 N.W.2d 725, 726, and citation.

While a motion to dismiss admits the truth of all well pleaded, issuable and relevant facts, it does not admit mere conclusions of fact or law not supported by allegations of ultimate facts. The ultimate facts must be pleaded. Conclusions by themselves are not permitted. Halvorson and Harvey cases; White v. Flood, all supra, and citations.

II. Both counts of the petition allege the city's proposed acts are contrary to Iowa laws, unnecessary, arbitrary and unjust. And Count I adds that the city's acts are unreasonable.

The petition does not assert any statute or right derived therefrom or refer to any statute it is claimed the city proposes to violate. See rule 94, Rules of Civil Procedure; In re Estate of Drumheller, 252 Iowa 1378, 1382, 110 N.W.2d 833, 835, 87 A.L.R.2d 1233. Nor do plaintiffs' briefs or arguments call attention to any statute they contend the city would violate and we are aware of none. To the contrary, we find statutory authority for what it is alleged the city proposes to do.

It is not suggested the 11 plaintiffs' homes will be taken without just compensation first being made or secured as Article I, section 18, of our state constitution requires. Nor is it contended other plaintiffs whose improved property may be damaged, injured, or diminished in value by change of the established street grade will not be paid the amount of such injury or damage as section 389.22, Code, 1962, requires. We have a right to assume both the constitutional and statutory provision will be complied with.

We will refer to the principal statutes which confer authority upon defendants to do what plaintiffs seek to enjoin.

Section 389.1 provides in part: 'Cities and towns shall have power to * * * widen * * *, improve, and repair streets, highways, avenues, * * * within their limits.'

Section 313.21, like several other applicable statutes, is too long to quote in full. The vital provision is: 'The state highway commission is hereby given authority, subject to the approval of the council, to construct, reconstruct, improve and maintain extensions of the primary road system within any city or town. * * * The location of said primary road extensions shall be determined by the state highway commission.'

Section 313.22 adds this to the provision last quoted: 'Any city or town and the state highway commission may enter into an agreement with respect to any project for the paving of any portion of a primary road extension. * * * Such agreement shall be a valid and binding obligation on the parties thereto.'

Code chapter 306A confers broad authority on cities, towns and highway authorities having jurisdiction and control over the state's highways, 'acting alone or in co-operation with each other * * *,' to plan, designate, establish, alter and improve any controlled-access facilities for public use wherever such authorities are of the opinion traffic conditions, present or future, will justify such facilities; provided that within cities and towns such authority is subject to such municipal consent as provided by law (section 306A.3).

Section 408.17 confers upon the city this clear statutory authority to do what plaintiffs' Count II alleges is contrary to Iowa laws: 'Cities and towns are hereby authorized to contract indebtedness and to issue general obligation bonds to provide funds to pay the cost of * * * widening, * * *, grading, and draining the right of way of any street, highway, avenue, * * * and to construct, reconstruct or repair any street improvement, and to pay the cost of land needed for right of way purposes.'

Plaintiffs do not allege or suggest in argument the city proposes to exceed its constitutional or statutory debt limit, Article XI, section 3, Iowa Constitution; Code section 407.2.

Section 404.7 empowers municipal corporations (2) to annually cause to be levied for the street fund a tax up to seven mills on the dollar on all taxable property within the corporate limits to be spent for widening, constructing and grading any street, highway or avenue; (10) for paying damages for change of grade as required by section 389.22, supra; and (13) for any other purpose having to do with streets specifically authorized by law.

Section 389.3 provides the expenses of street improvements referred to in 389.1, supra, may be paid from the street fund of cities and towns or by assessing abutting and adjacent property according to the benefits derived from the improvements.

Finally, section 368.37 confers upon municipal corporations power to purchase or condemn, 'pay out of the general fund or the specific fund, as may be provided, enter upon and take any lands * * * for such public purposes and as an incident to such other powers and duties conferred upon such corporations as make necessary or reasonable the acquisition of such land * * *.'

III. The conclusion stated in each count of the petition that the city proposes to violate Iowa laws cannot be accepted. The allegation that what the city proposes to do is also unnecessary, arbitrary and unjust--and in Count I that it is unreasonable--is also a mere conclusion not supported by any allegation of ultimate facts in the petition. Harvey v. Iowa State Highway Comm., supra, 256 Iowa 1229, 1231, 1232, 130 N.W.2d 725, 726, 727, is controlling upon this point.

The Harvey petition alleged in some detail no public need or convenience justified relocating a primary highway and building a new bridge...