Kepple v. City of Keokuk

• Decision Date: 17 October 1883
• Citation: 17 N.W. 140,61 Iowa 653
• Parties: KEPPLE AND ANOTHER v. CITY OF KEOKUK.
• Court: Iowa Supreme Court

61 Iowa 653

17 N.W. 140

KEPPLE AND ANOTHER

v.CITY OF KEOKUK.

Supreme Court of Iowa.

Filed October 17, 1883.

Appeal from Lee circuit court.

This is an action to recover damages for the alleged wrongful change of the grade of a street in front of certain lots and buildings owned by the plaintiffs. There was a trial by jury, which resulted in a verdict and judgment for the defendant, and the plaintiffs appeal.Craig, Collier & Craig, for appellants.

J. H. Dryden and Hagerman, McCrary & Hagerman, for appellee.

ROTHROCK, J.

It appears in the evidence that the plaintiffs are the owners of three lots in Reid's addition to Keokuk. These lots front on Fifth street, and are about 120 feet west of the intersection of Fifth and Cedar streets. Immediately west of plaintiffs' lots there is a stream called “Bloody Run,” which crosses Fifth street at a right angle. In 1873 the grantors of the plaintiffs erected buildings upon said lots with reference to the level or surface of Fifth street at that time. Before the buildings were erected the city council had by ordinance established the grade of Fifth street at the intersection of Cedar street. This ordinance established the grades of streets in the main part of the city in the usual manner, by the establishment of a datum line, or place of reference, and by measurements therefrom; but no grade was established by this evidence at any point in Fifth street west of Cedar street. Before the buildings were erected on the plaintiffs' lots, the city had built a substantial bridge with stone abutments over “Bloody Run,” and had quarried stone in the street west of plaintiffs' lots and used the same in filling up and macadamizing the street in front of and near plaintiffs' lots. In 1880 the city council, by an ordinance, changed the grade at the intersection of Fifth and Cedar streets by raising the same five feet, and established a grade west on said street past the property of the plaintiffs by which the surface of the street was raised from four to five feet. The object in raising the grade, and establishing a grade where none had been before established, was to so raise the bridge over “Bloody Run” as to allow the laying of a railroad track and the running of trains thereon under the bridge. The street was filled up and the bridge was raised to correspond with the grade thus established, and in filling up and raising the level of the street in front of plaintiffs' lots they have been damaged.

It was conceded that at the time plaintiffs' grantors erected buildings on the lots the records of the city council did not show that any grade had been established on Fifth street further west than the intersection of Cedar street. But the plaintiffs contended that it was not necessary to show that the city council had established a grade of the street by ordinance or resolution, and afterwards changed the same, to the damage and injury of the plaintiffs, and they contended that the fact that the city had improved the street by excavating, filling, and macadamizing it, and bridging the stream, was proper to be submitted to the jury, as showing an established and permanent grade by which the city was bound, and with reference to which lot-owners had the right to improve their lots and be protected in so doing, On the other hand, the defendant contended that the establishment of a grade could only be shown by some action of the city council by ordinance or resolution. The circuit court adopted...