Hempstead v. City of Des Moines

• Decision Date: 28 October 1879
• Citation: 3 N.W. 123,52 Iowa 303
• Parties: C. H. HEMPSTEAD, APPELLEE, v. THE CITY OF DES MOINES, APPELLANT.
• Court: Iowa Supreme Court

52 Iowa 303

3 N.W. 123

C. H. HEMPSTEAD, APPELLEE,

v.THE CITY OF DES MOINES, APPELLANT.

Supreme Court of Iowa.

Filed October 28, 1879.

Appeal from Polk circuit court.

Action to recover for injuries to certain real estate caused by the city changing the grade and excavating the streets upon which the property is situated. There was a verdict and judgment for plaintiff in the sum of $2,000. Defendant appeals.Bryan & Bryan, for appellant.

Nourse, Kauffman & Co., for appellee.

BECK, C.J.

1. The petition alleges that plaintiff has owned the property in question--lots 9, 10, 11 and 12, block 5, Scott's addition to the city of Des Moines--since November 11, 1874; that in 1857 the defendant established the grade of Walnut and Ninth streets adjacent to the lots, and re-established the same grade in 1861; that in 1876 defendant changed the grade of those streets so that they would be excavated below the original grade from three to six feet; that the streets were cut down to the grade established in 1876; that after the grade was first established, and before the change in 1876, the property had been improved, and large expenditures of money made for that purpose, and that defendant did not have the damages assessed as required by law, nor pay or tender to plaintiff such damages, before the streets were cut down. The plaintiff filed an amended petition, alleging that in a certain action in chancery, wherein the parties were the same as in this action, it was adjudged and decreed that the property had been improved with a view to a previously established grade, and that no excavation of the street could be made until, under proceedings authorized by the statute, the damages resulting therefrom should be assessed and paid. The answer of defendant denies the allegations of the petition.

2. The case can be more briefly and satisfactorily disposed of by considering the objections made by defendant's counsel in the order they are presented in their argument. We will therefore pursue that course in this opinion. It is first insisted that plaintiff is not entitled to recovery, however much the value of the property may be depreciated by the change of grade, unless the city, by negligence in making the change, caused direct injury to the property.

It may be that this rule prevails in the absence of statute, but Code, § 469, provides that where an established grade is altered “in such manner as to injure or diminish the value of property,” the city shall pay the owner the damages to be assessed in the manner prescribed. The city is made liable, not only for injury to the property, but for damages resulting from the value of the property being diminished. The court below properly held that plaintiff is entitled to recover for the diminution of the actual value of the property caused by excavating the streets.

3. The statute under which plaintiff claims to recover (Code, § 469) provides as follows: “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.”

Counsel for defendants insist--

“ First, that the improvements [contemplated in the provisions] must be made after the grade was established.

Second, they must be made according to the grade.

Third, the improvements must be made on the street.

Fourth, the injury must be done to such improvements, and not to the lots on which they are situated.”

4. In reply to these points we say: It may be admitted that improvements must be made after the grade is first established, and in accordance therewith, but it cannot be admitted that no other improvements are to be considered in estimating the injury. Improvements become part of the realty--a part of the whole property. The statute authorizes recovery for the diminution of the value of the property. The realty--the whole property--including improvements, buildings, etc., made before and after the grade was established, must be considered in estimating the damages. The plaintiff. when he made improvements after the grade was established, doubtless relied upon its continuance, and was induced...