Hubbell v. City of Des Moines

• Decision Date: 02 October 1915
• Docket Number: 30131
• Citation: 154 N.W. 337,173 Iowa 55
• Parties: FREDERICK M. HUBBELL et al., Appellees, v. CITY OF DES MOINES, Appellant
• Court: Iowa Supreme Court

154 N.W. 337

173 Iowa 55

FREDERICK M. HUBBELL et al., Appellees, v. CITY OF DES MOINES, Appellant

No. 30131

Supreme Court of Iowa, Des Moines

October 2, 1915

REHEARING DENIED THURSDAY, DECEMBER 16, 1915.

Appeal from Polk District Court.--W. H. MCHENRY, Judge.

ACTION brought to declare void an ordinance vacating a certain alley. The plaintiffs ask an injunction against the obstruction of the alley also, on the ground that the damage to plaintiffs' property abutting thereon was not first ascertained and paid, as required by Art. 1, Sec. 18, of the Constitution, it being claimed by the plaintiffs that the vacation of the alley was a taking of private property for public use, in violation of the terms of the Constitution.

Reversed.

R. O Brennan, H. W. Byers and Eskil C. Carlson, for appellant.

Parker Parrish & Miller, for appellees.

GAYNOR, J. WEAVER and PRESTON, JJ., concur, DEEMER, C. J., LADD and EVANS, JJ., specially concur. SALINGER, J., dissents.

OPINION

GAYNOR, J.

On the 20th day of May, 1912, the defendant city passed the following ordinance:

"Be It Ordained by the City Council of the City of Des Moines:

"Sec. 1. That the north and south alley between West Second Street and the Des Moines River and bounded on the north by Grand Avenue and on the south by Locust Street, said alley lying immediately east of the Coliseum, be and the same is hereby vacated.

"Sec. 2. That said alley so vacated and described in Sec. 1 of this ordinance be and the same is hereby placed under the supervision of the superintendent of parks and public property, the same to be utilized for park purposes.

"Sec. 3. All ordinances or parts of ordinances in conflict herewith are hereby repealed.

"Sec. 4. This ordinance shall be in full force and effect from and after its passage and publication as provided by law."

It appears that the plaintiffs are the owners of certain lots, occupied by the Coliseum referred to in said ordinance. This Coliseum building extends from Locust Street to Grand Avenue, immediately west and abutting upon the alley referred to. It is built of brick, has windows on the east side, facing the alley, but has no means of exit or entrance to or from the alley. The entrance is from Locust Street on the south, and from Grand Avenue on the north. On the north end of the Coliseum building, facing on Grand Avenue, there are two doors, or openings, one large enough to admit a large wagon or anything of that kind, and the other for the admission of people. On the south end of this building, fronting on Locust Street, there are three or four doors. All the exists and entrances are on the north and south sides of the building, facing on Locust Street and Grand Avenue. Grand Avenue is sixty-six feet wide between lot lines, and the roadway is forty-two feet between the curb. The Coliseum is now so arranged that all people who enter or leave the building must do so either on Locust Street or Grand Avenue. There is no exist or entrance on either the east or west side of the building. Locust Street, running immediately south of the Coliseum, is one of the main public streets of the city and is a paved street, with sidewalks both on the north and south sides. Grand Avenue is also a public street, paved and with side walks. The property immediately east of the Coliseum and this alley is owned by the city, and is used as a public park and fronts on the river. It has been graded and sodded, and a small structure erected called a pergola. This pergola is about ten feet high, and its west line is about six feet east of the Coliseum and about midway between Locust Street and Grand Avenue, and is thirty feet in radius. The alley was about sixteen feet wide. Prior to the time it was vacated, it was rough, full of rubbish, uneven, and unsatisfactory to drive on, and was not used very much. The land lying between the river and the Coliseum and immediately east of this alley is laid out as a place for the gathering of people in the evening, and as an adornment to the river front. The pergola is made of wood and stucco, with a concrete base, and has electric lights, and the park is provided with seats as a resting place for tired people, and is devoted exclusively to park purposes. No other buildings than the pergola are erected on this site. The city has expended considerable money in beautifying this place and in constructing the pergola. The effect of the vacation of this alley, the erection of this pergola, and the devotion of this strip between the Coliseum and the river to park purposes, is to prevent the use of this alley by teams on the east side of the Coliseum. These are all the facts necessary to a proper determination of the controversy here.

This action is brought to declare void the ordinance above set out, and to enjoin the obstruction of the alley by the defendant. The cause was tried to the court and a decree entered for the plaintiffs, as prayed. From this, defendant appeals.

It is conceded that the city did not, at, prior, or subsequent to the passage of the ordinance vacating the alley in controversy, take any steps to ascertain the damages, if any, to the lots abutting on this alley, and did not pay or secure to the owners of such lots the damage, if any, they sustained by reason of the vacation of the alley. This last concession provokes the whole controversy. The plaintiffs contend that the owner of property abutting on the street or an alley has an interest in the street, distinct from his interest as a citizen, and this interest is private property which is protected by Art. 1, Sec. 18, of the Constitution, which reads as follows:

"Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury", etc.

It is claimed that this interest which an abutting property owner has in a street or alley cannot be taken without first ascertaining and paying to him the damages, as provided in the Constitution; and it is claimed that, under this provision of the Constitution, where a street or alley is vacated, the ascertainment and payment of the damages must precede the act of vacation; and that any ordinance which undertakes to vacate a street or alley, without making provision for the ascertainment and payment of the damages, is void, as in contravention of the provisions of this article of the Constitution.

It is elementary that, under this provision of the Constitution, private property cannot be taken for public use until just compensation has been made or secured. The very first step in the taking of private property for public use is the ascertainment and payment of the damages which result to the property owner from the taking. This damage must be ascertained, paid or secured, before there can be a lawful taking of private property for public use. the question then is, Does the vacation of an alley constitute such a taking of private property of abutting owners that the act of vacation becomes unlawful unless the damages which may accrue from such vacation have been first ascertained, paid, or secured? The contention of the plaintiffs is that the city council had no power or jurisdiction to vacate until it had complied with this constitutional requirement.

It is proper first to determine what the powers of a city are over its public streets and alleys, what right it has in the same, and what power it has to establish or vacate. Sec. 751 of the Code provides:

"Cities and towns shall have power to establish, lay off, open, widen, straighten, narrow, vacate, extend, improve and repair streets, highways, avenues, alleys, public grounds", etc.

In McLachlan v. Town of Gray, 105 Iowa 259, 74 N.W. 773, this court said: "We understand the General Assembly has plenary power over streets and may vacate or discontinue the public easement in them, and may invest municipal corporations with this authority." This was an action to restrain the vacation of a highway within the limits of the incorporated town of Gray.

Spitzer v. Runyan, 113 Iowa 619, 85 N.W. 782, is an action in which the plaintiff sued out a writ of certiorari to test the validity of an ordinance passed by the city council, whereby certain streets and alleys were vacated, and the land comprised therein granted to the Burlington, C. R. & N. R. Co. In this case, the court recognized the right of the city, not only to vacate the streets and alleys, but to devote them thereafter to other than public purposes. See also, City of Marshalltown v. Forney, 61 Iowa 578, 16 N.W. 740; Harrington v. Iowa Cent. R. Co., 126 Iowa 388, 102 N.W. 139; City of Lake City v. Fulkerson, 122 Iowa 569, 98 N.W. 376; Walker v. City of Des Moines, 161 Iowa 215, 142 N.W. 51.

Therefore, we find not only that the statute confers, but judicial authority recognizes, the right of a city or town, through its proper council, to vacate or narrow a public street or alley, and, having done so, it is invested with authority to dispose of the land covered by the street or alley so vacated.

We come next to inquire what is the right of the abutting property owner in the street or alley, upon which he can predicate a legal right to have it maintained in statu quo. The fee of the street is in the city. The peculiar right of the abutting property owner is limited to the use of the street in connection with his property. Of course, he has a common right with the public to the use of the street. As an abutting landowner, he may have a distinct and different right. The plaintiffs, as abutting property owners, have a right to a means of egress and ingress. The street or alley having been established by proper authority, the right through that instrumentality of...