Kemp v. City of Des Moines
| Decision Date | 22 November 1904 |
| Citation | 101 N.W. 474,125 Iowa 640 |
| Parties | FRANCES E. KEMP, KITTIE M. CHAMBERLAIN, W. R. MARQUIS, Appellees, v. THE CITY OF DES MOINES, and THE BOARD OF PUBLIC WORKS, Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. JAMES A. HOWE, Judge.
ACTION in equity to enjoin the defendant city and its officers from removing a sidewalk and from lowering the grade upon which such walk is constructed. Decree for plaintiffs, and defendants appeal.
Reversed.
W. H Bremner, M. H. Cohen, and R. B. Alberson, for appellants.
J. K Macomber, W. C. Marquis, and L. C. Chamberlain, for appellees.
The plaintiffs are the owners of residence property fronting upon East Walnut street, between East Seventeenth and East Eighteenth streets, in the city of Des Moines, Iowa. According to the city's plan for the improvement of this street, a strip twenty feet wide between the lot line and the traveled roadway is reserved for parking purposes. Along the front of the plaintiff's premises, and about midway of the parking, is a row of shade trees of considerable size and value to said premises. These trees were planted some twenty or thirty years ago upon the natural or ungraded surface of the ground. To bring the sidewalk to the grade of the street will necessitate a cut along the front of plaintiff's lots, varying from one inch to twenty-four inches, and to grade the entire surface of the parking to correspond with the walk thus reduced will require, it is claimed, the uprooting of the trees. In the year 1897, one or more of the plaintiffs being about to construct a sidewalk upon the natural grade or surface of the ground in front of their lots, one Finney, the owner of adjacent property brought an action against plaintiffs and the city to enjoin such construction and to compel the laying of the walk at grade. The city appeared to said proceeding, and upon a hearing before the court the petition was dismissed. Thereafter the plaintiffs constructed walks substantially upon the natural grade. The walks, or most of them, were made of brick, and remained undisturbed until about the time of the commencement of this action, October 24, 1899. Without attempting to set out the pleadings, it is sufficient to say that the plaintiffs insist that the judgment in the former litigation has the effect of an adjudication of their right to maintain the walk at the present grade, and, in the event that this point be not sustained, that the proposed grading and destruction of the trees is an unreasonable and arbitrary exercise of power to the great and irreparable injury of their property.
I. It will scarcely need argument to make it clear that the plea of former adjudication cannot be sustained. The law gave the plaintiff in the former suit no right of action to compel his neighbors to build their sidewalks at any particular grade and he was equally without right to maintain suit against the city to compel it to grade or otherwise improve the street. The right to determine what streets will be brought to grade, and when and how the work shall be done, and the right to permit the building or retention of temporary sidewalks, is vested in the city alone, and the courts will not interfere with the exercise of its discretion save in cases where it clearly appears that the act complained of is unreasonable and oppressive. Moreover, the authority given to the city in this respect is legislative in character, and the city cannot surrender it or barter it away; nor can it be controlled, within its prescribed limits, by the judgments or decrees of the judicial department of the government. The dismissal of the bill in the former suit has in this principle its sufficient justification, and the present plaintiffs cannot avail themselves of that finding as an adjudication establishing their right to keep the street in front of their lots in the same condition for...
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