Johnson v. Robertson

• Decision Date: 03 April 1912
• Citation: 135 N.W. 585,156 Iowa 64
• Parties: JOHNSON v. ROBERTSON (CITY OF DES MOINES ET AL., INTERVENERS).
• Court: Iowa Supreme Court

156 Iowa 64

135 N.W. 585

JOHNSON

v.ROBERTSON (CITY OF DES MOINES ET AL., INTERVENERS).

Supreme Court of Iowa.

April 3, 1912.

Appeal from District Court, Polk County; Lawrence De Graff, Judge.

Suit in equity to enjoin defendant Robertson from erecting a building or in any way interfering with the free use of a four-foot strip of ground along the north side of a certain lot abutting upon Walnut street in the city of Des Moines. The city of Des Moines and the Johnson & Miller Company intervened in the suit, each making some claim to the strip of ground. Upon issues joined, the case was tried to the court, resulting in a decree dismissing plaintiff's petition and the cross-petitions of the interveners and plaintiff, and the interveners appeal. Reversed and remanded.R. O. Brennan, Carr, Carr & Evans, and O. M. Brockett, all of Des Moines, for appellants.

Howe & Lyon, of Des Moines, for appellee.

DEEMER, J.

Walnut street in the city of Des Moines is one of the main business thoroughfares of the city. It runs west from the river and, as originally platted from the river to Fifth street, was 80 feet wide, and from Fifth street west was but 60 feet in width. F. M. Hubbell was a large owner of real estate on the south side of Walnut street between Fifth and Eighth streets, and at an early day proposed to the other abutting property owners on this street that the sidewalkbe broadened from Fifth to Eighth street without changing the curb line. He took the matter up with one Clapp and other owners, and by paying Clapp either $100 or $200 secured an agreement from him and the other abutting owners between Fifth and Sixth streets to widen the sidewalk between these points. Thereafter he procured like agreements from the owners of property between Sixth and Seventh streets, and thereafter similar agreements among the property owners on the south side of Walnut street between Seventh and Eighth streets. Clapp set his building four feet back from the line, and, while other buildings were then on this four-foot strip when they were replaced by permanent structures, they were all set back four feet according to agreement. The various agreements were made some time prior to the year 1876, and every one abided by them for 15 or 20 years. The property in question is between Seventh and Eighth streets, and the agreement between the various interested property owners so far as material reads as follows:

“Know all men by these presents, that we, William McClelland (unmarried), S. A. Robertson and Margaret P. Robertson, his wife, Elizabeth Dimmitt (widow), Charles H. Getchell and Rachael E. Getchell, his wife, all of the county of Polk and state of Iowa, for and in consideration of the advantages which will result to each and all of us who are owners of lots Nos. one (1) and two (2) and seven (7) and eight (8) in block No. two (2) of the original town of Fort Des Moines, now included in the corporate limits of the city of Des Moines, Iowa, do hereby mutually agree to and with each other and bind ourselves and appropriate, set apart and use for sidewalk purposes the following parcel of land, to wit:

A strip of ground four feet wide off the north side of lots Nos. one (1) and eight (8), in block No. two (2) aforesaid and running the whole length of said lots, and to that end we mutually agree to and with each other that in case we erect or cause to be erected upon said lots or any part thereof, any building or buildings after this date, will set said building four feet south of the north line of said lots, and upon the erection of such building or buildings, we will construct and thereafter maintain upon said strip of four feet of ground a good substantial sidewalk at the proper grade; and that said strip of four feet shall never be reclaimed for the purpose of erecting buildings thereon or be used for any other than sidewalk purpose except it be by the unanimous consent of all the owners of property in said lots Nos. one (1) and eight (8) expressed in writing, signed, sealed and acknowledged.

It is understood that said strip of four feet, or so much thereof as may be needed, may be used by the parties who own the property for stairways into their several basements, and for the display of goods, wares and merchandise; but it is not the intention of the parties hereto to dedicate said strip of ground to the city of Des Moines or to the public, but to hold it as private property, to be used as above stated and for our own convenience and profit.”

S. A. Robertson, one of the parties to this agreement, is the defendant to this suit, and interveners Johnson & Miller Company are lessees of parts of lots 1 and 2 in block 2 of the city of Des Moines from Chas. Weitz. Weitz acquired title to that part of the property covered by the lease by certain mesne conveyances from one Dimmitt, who was a party to the agreement from which we have just quoted. The lease to the Johnson & Miller Company was made on September 1, 1906, for the term of 10 years, and by the terms thereof the lessees were to use the premises for the conduct of a retail mercantile business, and for no other purpose. These premises were at that time, as now, covered by a one-story building, and this building abutted one immediately to the east, which was then, as now, owned by the defendant, Robertson. Pursuant to the original agreement, the sidewalks were widened by the various property owners and made uniform through the blocks on the south side of Walnut street between Fifth and Eighth streets, and no permanent structures were allowed to encroach upon this four-foot strip save as will hereafter be noticed.

When defendant first constructed his building upon the lot now owned by him, the front was set back so as to leave this four-foot strip, but a step or approach to the building was with the consent of the board of public works of the city constructed upon this fourfoot strip. This step was 7 3/4 inches high and 4 feet wide and extended the full width of the building on Walnut street. This step remained there until he (Robertson) concluded to remodel his building some time in the fall of the year 1909, when he tore it out, and in place thereof was proposing to erect a large display window covering almost this entire four-foot strip, which window was to be 14 or 15 feet high, 33 1/3 feet wide, and 4 feet deep, wave for an entrance into the store building near the center 10 feet and 9 inches in width. Shortly after this improvement was commenced, plaintiff brought this action to enjoin the erection thereof. The city came into the case by intervention December 11, 1909, and the Johnson & Miller Company on January 30, 1911. Upon the presentation of the petition on October 14, 1909, to Hon. W. H. McHenry, one of the judges of the district court, he made the following order: “On reading the foregoing petition, it is ordered, this 14th day of October, 1909, that 9 o'clock upon the 18th day of October, 1909, be fixed as the time for hearing the application for temporary injunction asked for in said petition, and that the said hearing be held at the equity courtroom in the courthouse of Polk county, Iowa, and the said defendant given notice of said hearing at least 4 days prior to said date.”

The record also contains the following: “Said hearing was accordingly had, and at the conclusion thereof the court orally announced that an order should be entered for a temporary injunction as prayed; but no record of such order was made, and no such writ ever in fact issued.”

The case came on for final hearing on March 15, 1911, and was finally disposed of on the 16th of that month, the decree being in favor of Robertson.

[1] Plaintiff bases his right of action upon the lease hitherto mentioned, and claims that he is entitled to the injunction prayed because of the agreement made by the property owners in the year 1876. He makes no other claim, and it is manifest from the statement already made that he is not a lessee of the premises, and that he is in no position to ask for an injunction. The intervener city claims that the four-foot strip is a part of Walnut street acquired through dedication or by prescription, and that it is entitled to maintain this action to prevent the obstruction of the street. The Johnson & Miller Company as lessees from Weitz claims that it is entitled to a decree restraining the erection of the structure on the four-foot strip by reason of the original agreement of the property owners, and for the further reason that the structure constitutes a nuisance in that it obstructs Walnut street in such a manner as to cause it special damages. This last proposition is bottomed upon the thought that this four-foot strip is either a public right of way that is a part of Walnut street, or a private way by agreement, and that in either event it is entitled to such a decree as will preserve its use either as a private or public way. Defendant Robertson interposed many defenses; among other things he claims (1) that plaintiff has no such interest in the controversy as entitles him to any relief; (2) that the city has no interest in the strip, either by dedication or prescription; (3) that the only right of the Johnson & Miller Company is a contractual one based upon its contract of lease, and that as lessee it has no right of action, save against its lessor, and no right to an injunction restraining the erection of the improvement; (4) that the present owners of the building, the heirs of the Chas. Weitz estate, he (Weitz) being dead, were and are the contractors who were making the improvement for Robertson, and that for this reason they are estopped from claiming any relief against defendant; (5) that the original agreement with reference to the use of the four-foot strip has been abrogated by reason of material violations of the parties thereto and by mutual acquiescence; (6) that the remodeling of the building was in strict accord with the terms of the...