Liddick v. City of Council Bluffs, No. 45817.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: BLISS
• Citation: 232 Iowa 197,5 N.W.2d 361
• Docket Number: No. 45817.
• Decision Date: 11 August 1942
• Parties: LIDDICK et al. v. CITY OF COUNCIL BLUFFS et al. (SHYKEN et al., Intervenors).

232 Iowa 197
5 N.W.2d 361

LIDDICK et al.
v.
CITY OF COUNCIL BLUFFS et al. (SHYKEN et al., Intervenors).

No. 45817.

Supreme Court of Iowa.

Aug. 11, 1942.

Appeal from District Court, Pottawattamie County; Whitney Gillilland, Judge.

Plaintiffs sued to enjoin the defendants from constructing and maintaining a viaduct longitudinally on and over Broadway, a main street of the defendant city, upon the grounds that said structure will cause them great and irreparable damage by interfering with the right of ingress to and egress from their abutting property and the passage of light and air thereto. The appellants, who also own properties abutting on said street, intervened and prayed that the defendants be enjoined from taking any steps toward the building of the viaduct until the payment for injuries to their properties be first made or secured by appropriate proceedings. The members of the highway commission, by answer to the petitions of plaintiffs and intervenors, admitted the proposed building of the viaduct, but denied that those complaining would sustain any legal damage, and prayed for the dismissal of the petitions. The city and its said officers answered the petitions and admitted that the highway commission proposed to construct the viaduct, but alleged that they were not participating therein and did not intend to participate in the location and construction of the viaduct; that the proposed structure would not be, or effect, a change in the established grade of the street, and that the intervenors would not sustain any legal damage. They prayed for the dismissal of the petitions. Trial was had and the court rendered decree denying all relief to the complaining parties, and dismissed their petitions, except the decree was without prejudice to the rights, if any, of the intervening Omaha & Council Bluffs Street Railway Company and the Omaha & Council Bluffs Street Railway Bridge Company, who have not appealed. The only appellants are the other intervenors, Shyken, et al. The decree is reversed and remanded as to them.

[5 N.W.2d 364]

Kimball, Peterson, Smith & Peterson, Ross, Everest, Geiser & Johnson, and Donald P. Baird, all of Council Bluffs, for intervenors-appellants.

Hugh P. Finerty and Paul E. Robertson, both of Council Bluffs, for plaintiffs-appellees.

Proctor R. Perkins, of Council Bluffs, and Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellee City of Council Bluffs and its officers.

G. H. Clark, Jr., of Ames, for appellee Iowa State Highway Commission and its members.

Daniel T. Sullivan, of Council Bluffs, for Louise Elbert Everett, intervenor-appellee.

Ross, Everest, Geiser & Johnson, of Council Bluffs, for the Omaha & Council Bluffs St. Ry. Co. intervenor-appellee.

Wright & Kistle and Addison G. Kistle, all of Council Bluffs, for Omaha & Council Bluffs St. Ry. Bridge Co. intervenor-appellee.

BLISS, Justice.

For brevity and clarity, the city of Council Bluffs and its defending officers, and the Iowa State Highway Commission and its defending members, will be referred to, respectively, as the “city,” and as the “commission.” This case was tried below, and comes to this court, by somewhat irregular procedure. It was instituted by the plaintiffs and the defendants as a “test” case. While it was alleged in the petition and admitted in the answers, that the viaduct will be constructed unless the defendants were enjoined, it appears from the record that these allegations were simply for the purpose of stating an issue, and that the defendants did not and do not intend to build the viaduct, if this court determines that the abutting owners are entitled to compensation for the taking of their property, or for damages for its injury. While they seek a ruling of this court in the nature of an advisory opinion, yet the question for determination is not exactly moot or abstract, and its answer is necessary for the disposition of an actual pending controversy, and concerns a matter of public importance, the settlement of which is desired by all parties to the suit. The entrance of the intervenors into the case has made it one of a real adversary nature, and the judgment and decree of this court will be a final adjudication of the rights of the parties. 1 C.J.S., Actions, §§ 17, 18, pages 1012 et seq.

The construction of the viaduct has not been started. The only questions involved are those of law, and the one which we are asked to determine, is whether the city is liable to the owners of property abutting on the street, at the location of the viaduct, for compensation for the taking of their property, or for damages for its injury, growing out of the construction of the viaduct.

The defendants contend that even though the viaduct would permanently injure the property by impairing its use and depreciating its value, since the structure will be for a public purpose, and wholly within the street lines, and will not directly and actually invade or encroach upon the tangible abutting property itself, there will be no “taking” of the property for a public use in the constitutional sense, requiring just compensation, and that any damages sustained

[5 N.W.2d 365]

will not be “legal” damages, but will be consequential damages, or damages for which there can never be any recovery, since they were presumably paid for or waived when the land for the highway was condemned, purchased, or dedicated.

The abutting property owners, however, insist that the viaduct will destroy or seriously interfere with their rights of access to and from their property, and to the passage of light and air thereto, and that these rights are valuable, and are their “private property,” which they have never parted with in any way, or for which they have never been compensated, and that the viaduct will effect a “taking” of these property rights in the constitutional sense, and that payment therefor should be made or secured before the property is taken. They also urge that the viaduct will effect a change in the established grade of the street, in conformity with which they improved their properties, and that such change will damage and diminish the value of their property, and that no alteration of the grade should be made until the damages are assessed and paid, in compliance with sections 5953, et seq., Code of 1939.

We agree with the contentions of the abutting owners as above stated.

For fifteen years or more before these proceedings were started, the building of this viaduct has been under consideration by the city and the commission. In 1935 it was on the building program of the commission, and was submitted to and was approved by the Federal Government, which was to make the funds available for construction costs, under an Act of Congress for the elimination of hazards to life at railway grade crossings, but which would furnish no money for the payment of compensation or damages to the owners of abutting property, or for right-of-way. F. R. White, chief engineer of the commission, testified: “Nothing was done about the proposed project at that time, because no provision had been made for taking care of any property damages and eventually the project was dropped out of the program, and was not built because no provision had been made for the payment of damages to abutting property. The matter of damages was so important that we refused to go ahead with the project until damages had been taken care of in some way. * * * The Commission has no authority to pay damages where the improvement is constructed wholly within the limits of the existing right of way.” At that time it was not within the contemplation of the commission or of the city that abutting property owners were not entitled to compensation for any taking or impairment of their property.

In 1936, at a time when the proposed viaduct was planned to extend only from 9th Street on the east to 14th Street on the west, the city appointed three councilmen as a committee to make a complete investigation of all the property abutting on Broadway on the site of the viaduct. After making the investigation and after collaboration with the appraisal board of the Council Bluffs Real Estate Board, they made a written report to the council. This report stated that the abutting property had a taxable value of $86,040; that the owners estimated the property damages to be $200,100; and, that in the opinion of the committee “a reasonable and adequate settlement” could be made for approximately $94,450. This report was accepted and filed. The estimate did not include damages to tenants. One of the committee, who owned much property in the city estimated the damages to property and business at $100,000 to $125,000.

Late in 1937, it was the thought of attorneys for the city that the viaduct might be constructed without paying damages to abutting property owners. The plan was and is that the cost of constructing the viaduct will be paid out of Federal Railroad Crossing Funds, under an Act of Congress designed to eliminate hazards to life at railroad grade crossings. Broadway is an extension, within the city, of a number of much traveled Iowa primary, and U. S. Roads. The Chicago & Northwestern Railroad Company tracks cross Broadway at right angles between 11th and 12th Streets, and the tracks of the Illinois Central Railroad Company cross in like manner at 13th Street. The viaduct is not to be constructed, by the railroad companies under the provisions of Chapter 305 of the Iowa Code, under which damages to property must be paid, nor by the city under Chapters 301, 317 or any other statutory authority. But the plan proposed is, that the Highway Commission will design, supervise and construct the viaduct under Code, sections 4626, 4626.2, 4755.21, 4755.23, 4755.25, 4755.27, and other sections. Under the construction procedure proposed, no funds are said to be available from the Federal Government or from the commission to pay any compensation

[5 N.W.2d 366]

or damages to abutting owners...