Hinrichs v. Iowa State Highway Commission

• Decision Date: 11 July 1967
• Docket Number: No. 52512,52512
• Citation: 260 Iowa 1115,152 N.W.2d 248
• Parties: Henry J. HINRICHS and Chris A. Hinrichs, Appellants, v. IOWA STATE HIGHWAY COMMISSION and Board of Supervisors of Cass County, Appellees.
• Court: Iowa Supreme Court

Page 248

152 N.W.2d 248

260 Iowa 1115

Henry J. HINRICHS and Chris A. Hinrichs, Appellants, v. IOWA STATE HIGHWAY COMMISSION and Board of Supervisors of Cass County, Appellees.

No. 52512.

Supreme Court of Iowa.

July 11, 1967.

Donald P. Baird, Council Bluffs, Ralph W. Cockshoot, Donald P. Reel, Atlantic, and Lawrence R. Brodkey, Omaha, Neb., for appellants.

Richard C. Turner, Atty. Gen., Des Moines, Robert N. Merillat, Special Asst. Atty. Gen., Counsel to Iowa State Highway Commission, Ames, James E. Graham, Asst. Atty. Gen., Ames, and S. Howard Rudolph, Jr., Atlantic, for appellees.

RAWLINGS, Justice.

Plaintiffs brought four separate actions, all involving closure of a secondary road. Challenging motions were filed by defendants in each case. From ruling by the trial court adverse to plaintiffs in each instance, they appeal. We affirm.

The Iowa State Highway Commission caused Buck Creek Road, a north-south secondary road, to be closed at a point in Cass County where it meets and intersects the right of way of Interstate 80, a controlled-access facility.

By their first action, (No. 16610), filed May 4, 1964, plaintiffs sought an injunction restraining the Cass County Board of Supervisors from closing Buck Creek Road, hereafter sometimes referred to as the Road, at the aforesaid intersecting point, or from delegating authority to defendant highway commission to do so.

The second action, (No. 16630), was filed July 1, 1964. Here plaintiffs sought to restrain defendant commission from closing the Road, claiming hearing had not been conducted in accord with chapters 306 and 306A, Code of Iowa, that the closure action about to be taken was illegal and without due process of law.

Then August 27, 1964, plaintiffs appealed to the district court, (No. 16664), from the resolution of defendant commission overruling plaintiffs' objections to closure of the road and denying them damages. The damage claim was based upon an alleged decrease in value of their land by the closure action, and a violation of their contractual right to have the Road kept open, having contributed to its improvement under Code chapter 311.

December 23, 1964, plaintiffs sought a judicial review by certiorari, (No. 16711), of defendant commission's closure proceedings and denial of damages to plaintiffs.

Motions by defendants to dismiss cases No. 16610, No. 16630 and No. 16664, and to quash in case No. 16711, were sustained by the trial court.

One subject, closure of the Road, is a basic and common factor in all of these actions. On plaintiffs' application, defendants having consented, we ordered consolidation of the four cases on appeal. They are accordingly entertained, although the record is not in usual form. As a result, and in order to avoid delay and additional costs, the original files have been certified to this court and will be referred to by us where necessary.

The issues to be considered on this appeal must be resolved upon the basis of the pleadings filed.

I. Plaintiffs contend defendant highway commission exceeded its authority and jurisdiction by ordering a grade separation at the intersecting point of the two roadways And by closing the Road. Plaintiffs' pleadings would entitle them to no relief on this claim.

They invoke Code section 306A.6, which allows cities, towns and highway authorities to provide for elimination of intersections with a controlled-access facility by grade separation, or service road, Or by closing off roads at the right of way boundary line of the favored highway. It is claimed defendant commission effected a grade separation And closed a road.

Here some rationalization of the factual situation revealed by the pleadings is required.

Mr. McCrory and Mr. Nelson owned land abutting the Road, a portion of their properties being located within the right of way lines of Interstate 80.

Some of the land owned by these abutting owners was taken by condemnation proceedings in connection with construction of the interstate. This left them with some land to the south, and some made inaccessible to them by construction of the new highway.

At the point or area here concerned, two bridges were required to span the stream identified as Buck Creek.

In connection with the settlement of condemnation actions taken in order to obtain a needed portion of the land owned by McCrory and Nelson, they were granted a private right of access to their property, otherwise inaccessible, by passage under the east end of the interstate bridges. As a part of this arrangement these landowners agreed to contribute a substantial sum to cover increased costs in connection with construction of the bridge over Buck Creek, a revised plan being necessary to permit their usage of this private access route.

The question now presented is whether the placement of these bridges, with the grant of a private interconnecting route to McCrory and Nelson under them, constitutes a grade separation.

In recent years controlled-access highways have become a virtual necessity in many areas. Where public safety and convenience dictate, grade separations are often effected to provide two or more sepparate paths of travel which would otherwise intersect. See in this regard Christensen v. Board of Supervisors, 253 Iowa 978, 982, 144 N.W.2d 897.

The term 'grade separation', when used in connection with the establishment of variant levels in any one area for the movement of traffic, usually means artificially created differences in level as distinguished from the bridging of natural contours of the earth.

Buck Creek, where it passes under Interstate 80, runs north and south and lies at the base of a gully.

Construction of the bridges over this creek did not constitute a grade separation. That was not their function. They were built to span an existing gully and differed in no material respect from a bridge built over any type of depressed area. The creek bed, not the Road, necessitated construction of these bridges. In this regard see Southern Ry. Co. v. South Carolina State Hwy. Dept., 237 S.C. 75, 115 S.E.2d 685, 688.

In the instant case that portion of the Road north of the point of closure was simply rerouted under the bridges, creating a limited underpass for the use of McCrory and Nelson.

Under these circumstances no grade separation was here effected.

Plaintiffs' allegation to the effect defendant highway commission had neither the authority nor jurisdiction to close the Road And provide a grade separation is without substance.

The foregoing serves to effectively dispose of the first two propositions urged by plaintiffs in support of their appeal.

II. It is also contended, closing the Road to travel by the public but permitting private use of the closed portion violates certain of plaintiffs' constitutional and statutory rights. This allegation would entitle plaintiffs to no relief sought by their pleadings.

As best we can determine they claimed, in the trial court, a violation of rights under Amendment 14, United States Constitution, and Article I, section 9, Constitution of Iowa.

Now, for the first time, an attempt is made to invoke Article III, section 30, and Article I, section 6, of the Iowa Constitution.

This is nothing more nor less than an effort by plaintiffs to mend their hold in this court.

Those constitutional questions raised here for the first time will not be considered. See Jacobs v. City of Chariton, 245 Iowa 1378, 1393--1394, 65 N.W.2d 561, and Shugart v. Maytag, 188 Iowa 916, 924, 176 N.W. 886.

On the point with which we are now dealing, plaintiffs' argument again falls of its own weight.

McCrory and Nelson were not granted use of a Highway to the exclusion of any use of same by these plaintiffs or others.

The highways of this state are constitutionally classified as: (1) primary, (2) institutional, (3) secondary, and (4) state park. Code sections 306.1 and 306.2.

Being creatures of the law they may be altered, vacated or closed at any time. This cannot be prevented by anyone upon the basis of a vested right to keep them open. Code section 306.4, and Warren v. Iowa State Highway Commission, 250 Iowa 473, 477, 93 N.W.2d 60.

These authorities serve to effectively dispose of any claim by plaintiffs that the Road could not be closed because they had contributed to its improvement, giving them a contractual right to have it kept open for their unrestricted use.

A secondary road, improved by the contributions of adjacent or abutting landowners remains an integral part of the state highway system, and becomes in no sense a private or semi-private roadway. No contributor acquires a vested or contractual right in it.

The Road was closed where it met and intersected the interstate right of way, and the access route allowed McCrory and Nelson has not since been a road, highway or public thoroughfare.

III. The matter of procedure followed by defendant commission in closing the Road is also challenged by plaintiffs.

Here again their pleadings disclose no basis upon which any relief could be granted.

They allege the hearing held preliminary to closure was not conducted according to law, in violation of their constitutional rights.

Their pleadings disclose: (1) notice of a hearing relative to the proposed closure was given, (2) plaintiffs appeared at time of hearing and objected because employees of defendant commission were there to conduct the hearing, (3) no member of the commission was present, and (4) a hearing was held.

It is claimed this was contrary to Code section 306.3, 306A.6, and 307.1, and violated plaintiffs' rights under section 1, Amendment 14, Constitution of the United States, and Article I, section 9, of the Iowa Constitution.

There is no allegation in plaintiffs' pleadings that defendants were guilty of fraud, bad faith or arbitrary abuse of discretion in any actions taken.

In that regard this court said in Harvey v. Iowa State Highway Commission, 256 Iowa 1229, 1231, 130 N.W.2d 725,...