Incorporated Town of Windsor Heights v. Colby

Decision Date09 April 1958
Docket NumberNo. 49454,49454
Citation249 Iowa 802,89 N.W.2d 157
PartiesThe INCORPORATED TOWN OF WINDSOR HEIGHTS, Iowa, Appellee, v. Clark COLBY, Charles Colby, et al., Appellants.
CourtIowa Supreme Court

Joseph M. Coppola and Volney Diltz, Des Moines, for appellants.

Rice & Rice and John Fletcher, Mapleton, and Warren Fletcher, Des Moines, for appellee.

WENNERSTRUM, Justice.

This appeal has developed by reason of action taken by the council of the Town of Windsor Heights, Iowa, an incorporated municipality, for the annexation of territory contiguous to it. Litigation relative to a portion of the proposed territory here involved was before this court in State ex rel. Mercer v. Incorporated Town of Crestwood, Iowa, 80 N.W.2d 489; 81 N.W.2d 452, a quo warranto proceedings. The matters therein considered are not involved in the present appeal. The defendants in the present action maintain there was a misdescription of the property sought to be annexed and it is further contended the statute was not followed in regard to the manner the property owners were ascertained. The trial court held contrary to the claims of the defendants and they have appealed.

The present case involves residents of an area in addition to those who reside in what was sought to be incorporated as the Town of Crestwood in the prior action. In seeking to comply with Section 362.26, 1954 Code, I.C.A., the area now sought to be annexed was described in the council proceeding, on the election ballot, and in the petition in the court action relative to the annexation, as follows: 'Commencing at the intersection of 63rd Street and College Avenue, being the Northeast corner of the present corporation limits of the Town of Windsor Heights; thence north to Hickman Avenue; thence West on the South side of Hickman Avenue to where it intersects Walnut Creek; thence Southerly along the East side of Walnut Creek to University Avenue; thence East on University Avenue to 73rd Street; thence South on the East side of 73rd Street to and including the area known as Rancho Grande, according to official plat of same; thence East on the center line of Center Street to 63rd Street; thence North on 63rd Street to College Avenue, the place of beginning, except such part of the area lying within the described boundaries as is now within the Corporate Limits of the Town of Windsor Heights, Iowa.' (Emphasis supplied.)

It is the contention of the defendants the description heretofore set out was erroneous in that it is claimed the stream referred to in the description as Walnut Creek was not in fact that creek, but a branch or tributary of it which has been known as North Walnut Creek. It is further contended Hickman Avenue and Highway Six are similar throughfares in the City of Des Moines, which adjoins a portion of the territory sought to be annexed, and there is no clearly defined place outside the City of Des Moines where Hickman Avenue ceases and the Highway commences to be known only as Highway Six. It is further contended by the defendants Walnut Creek proper intersects Highway Six outside the City of Des Moines and at a point approximately three miles west of the place the stream referred to in the proceedings crosses Hickman Avenue.

The trial court in its findings of facts and conclusions of law held the petition filed in this case carried a description of the territory sought to be annexed which was at least technically incorrect and not in keeping with what the council intended to do. It therein made a statement of the situation which succinctly sets forth the situation and we shall quote that part of its opinion which pertains to the description:

'* * * The description was by metes and bounds and commenced at the intersection of 63rd Street and College Avenue, being the northeast corner of the corporation limits of Windsor Heights; thence north to Hickman Avenue; 'thence west on the south side of Hickman Avenue to where it intersects Walnut Creek;' thence southerly along the east side of Walnut Creek to University Avenue; thence east and then south; thence east again to 63rd Street and then north on 63rd Street to College Avenue, the place of beginning.

'The part of the description in question is that part which is in quotation marks above set forth.

'It appears from the official plats and maps, some of them at least, that in going 'thence west on the south side of Hickman Avenue to where it intersects Walnut Creek's that the name of the creek that Hickman intersected was North Walnut Creek and that there is another creek called Walnut Creek which is in fact some two and a half or three miles west of North Walnut Creek. Hickman Avenue does not intersect this Walnut Creek. When the extension of Hickman Avenue gets that far to the west it is called Highway No. 6. It is the position of the defendants that since there was a misdescription arising as above set forth in all of the proceedings of the council as well as the allegation in plaintiff's petition, that this is fatal to plaintiff's claim for annexation and that plaintiff should fail in its attempt to annex the proposed territory.

'There was attached to plaintiff's petition a plat, within the perimeter of which lay the land which plaintiff sought to annex and it was within this limited area from which the owners' names were taken. No attempt was made by the City of Windsor Heights to include the area west of North Walnut Creek and it is a misdescription but is corrected by the plat and identified by the plat and there never was an intention on the part of the city officials to include in the annexation area land west of North Walnut Creek. It is referred to in the evidence and some plats or maps variously as Walnut Creek or N. Walnut Creek and once as Little Creek, that is, a creek which intersects Hickman and University. Another map showed no name at all for this creek.

'Moreover, all of the exhibits showing this stream show that a stream thereon shown as Walnut Creek lying west of the creek intended in the perimeter description, proceeds in an almost easterly by southeasterly direction from U. S. Highway 6, that it intersected what was shown on one of the exhibits as U. S. Highway 6, and that it never intersected University Avenue. All of the exhibits clearly show that the creek intended by the council of Windsor Heights to be a part of the perimeter, did intersect Hickman and proceeded in a southwesterly direction to intersect University. There is no other creek in the vicinity or shown by the evidence that intersects with Hickman or that intersects with University or that takes a southerly direction which...

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11 cases
  • City of Clinton v. Owners of Property Situated Within Certain Described Boundaries, 54635
    • United States
    • United States State Supreme Court of Iowa
    • November 11, 1971
    ...liberally in favor of the public. City of Cedar Rapids v. Cox, 250 Iowa 457, 93 N.W.2d 216 (1958); Incorporated Town of Windsor Heights v. Colby, 249 Iowa 802, 89 N.W.2d 157 (1958). See also 2 E. McQuillin, Municipal Corporations § 7.14, pp. 328--329 (3d ed. rev. 1966). Considering defendan......
  • Ramthun's Estate, In re, 49401
    • United States
    • United States State Supreme Court of Iowa
    • April 9, 1958
  • Durant Community School Dist., In re
    • United States
    • United States State Supreme Court of Iowa
    • December 13, 1960
    ...citation; State ex rel. Warrington v. Community School District, 247 Iowa 1167, 1178, 78 N.W.2d 86, 93; Town of Windsor Heights, Inc. v. Colby, 249 Iowa 802, 807, 89 N.W.2d 157, 160. These observations apply to each of the propositions appellants We have not commented directly on all the co......
  • Residential & Agric. Advisory Comm., LLC v. Dyersville City Council
    • United States
    • United States State Supreme Court of Iowa
    • December 9, 2016
    ...Heights v. Colby , the legal description was listed as "Walnut Creek" when the proper description should have been "North Walnut Creek." 249 Iowa 802, 804–05, 89 N.W.2d 157, 158 (1958). We held this was a "technical misdescription" and was not substantial. Id. at 806–07, 89 N.W.2d at 159. T......
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