Globe Machinery & Supply Co. v. City of Des Moines
| Decision Date | 06 June 1912 |
| Citation | 136 N.W. 518,156 Iowa 267 |
| Parties | GLOBE MACHINERY & SUPPLY COMPANY, Appellant, v. CITY OF DES MOINES |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
THE defendant city, having proceeded in a proper manner to provide for the construction of a viaduct in one of its streets over the tracks of certain railway companies, which viaduct was to be constructed at the expense of such companies, caused proceedings to be instituted for appraising, assessing, and determining the damages caused to property abutting on the street by reason of the construction of such viaduct and its approaches. See Code, sections 770-774, as amended by subsequent statutes embodied in Code Supp., sections 771-774. In this proceeding, there was an assessment by commissioners appointed by the sheriff of the damages to plaintiff's property, which abutted upon the portion of the street in which the viaduct and its approaches were to be constructed. From this assessment, the plaintiff appealed to the district court in the manner provided in Code, sections 2009-2012, for appeals in proceedings involving the taking of private property for public use, and as the result of this appeal the amount to be paid to the plaintiff was largely increased. Thereupon plaintiff moved to have the lower court tax against defendant and in favor of plaintiff's attorneys the reasonable attorney's fees of plaintiff on such appeal. This motion was overruled, and the court directed that the costs of the assessment and of the appeal, not including any allowance for attorney's fees, be taxed to the defendant. From the order disallowing attorney's fees as a portion of the costs, the plaintiff appeals.
Reversed.
Read & Read, for appellant.
R. O Brennan, H. W. Byers, and Eskil Carlson, for appellee.
The statutory provisions as to taking of private property for public use, which includes Code, section 2007, relating to attorney's fees in favor of the person whose property is sought to be condemned, evidently have no application to the assessment of damages to an abutting property owner resulting from the construction of a viaduct in a public street of a city, unless, in the statutes relating to viaducts, they are incorporated by reference. Furthermore, it is plain that even though the construction of such viaduct may be a change of grade of the street for which the city would be liable, under the provisions of Code, section 785, to an abutting property owner, who has improved his property in reliance on a previously existing grade, the Legislature has authorized a different method of procedure in regard to the assessment of damages for the construction of a viaduct from that provided in case of a change of grade; for, by Code, section 786, the amount of damages for change of grade is to be determined by commissioners selected by the mayor and the property owner, who are to report their appraisement to the city council, which may confirm or annul the appraisement in its discretion, a right of appeal from the action of the council confirming the assessment to the district court being provided for (see Code, sections 786-790); while, in regard to viaducts, it is provided that the proceedings for assessing the damages to abutting property owners "shall be the same as in case of taking of private property for works of internal improvement." Code, Supp. section 771. The defendant city did proceed in accordance with the method prescribed for assessing damages in case of taking private property for works of internal improvement; and it must be conceded that, having pursued this method, the defendant was bound to pay the costs of the assessment and those occasioned by the appeal out of the funds designated in Code Supp., section 771-a.
The only question now before us is whether the costs of the assessment and those occasioned by the appeal include reasonable attorney's fees, as provided in Code, section 2007; that is to...
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