Long v. Wilson

• Court: United States State Supreme Court of Iowa
• Writing for the Court: LADD
• Citation: 119 Iowa 267,93 N.W. 282
• Decision Date: 28 January 1903
• Parties: LONG v. WILSON ET AL.

119 Iowa 267
93 N.W. 282

LONG
v.
WILSON ET AL.

Supreme Court of Iowa.

Jan. 28, 1903.

Appeal from district court, Dallas county; J. H. Applegate, Judge.

The petition alleged that plaintiff acquired lots 5, 6, and 7 in block 3, abutting Fifth street, in Tyler's addition to Perry, in 1892, and shortly thereafter occupied them as a homestead for himself and family, and has continued to do so since; that said street is 70 feet wide, and the only one through which plaintiff has convenient access to said property. It also averred facts which, if true, indicate that said street, through dedication, had become a public street of the city before defendants acquired block 4 of said addition, in November, 1900, and that they have since encroached on said street by erecting a dwelling house, building a fence, and planting shade trees up to within 13 feet of the east line of plaintiff's lots, and threaten by other obstructions to prevent the use of all the said street, save said strip 13 feet wide along the east side of plaintiff's lots, and thereby interfere with his access to his property, and the comfort and enjoyment of it as a home, and greatly diminish its value. Plaintiff prayed that these obstructions be abated, and defendants enjoined from encroaching on said street. In the third division of the answer the defendants aver that they acquired said block 4 (describing it) of the Security Investment Company of Baltimore November 27, 1900; that prior to that time, December 19, 1899, said company commenced an action against the city of Perry to establish the boundaries of said block, and to quiet title against said city; that said city appeared and answered; that decree was entered, as prayed, confirming the boundaries of said block as claimed by defendants. Copies of the pleadings and decree in that case were set out as part of the answer. To this division the plaintiff interposed a general demurrer and also that the adjudication was not binding on plaintiff, as he was not a party to the action. The demurrer was sustained, and defendants appeal. Affirmed.

[93 N.W. 282]

Giddings & Winegar, for appellants.

White & Clarke and H. A. Hoyt, for appellee.

LADD, J.

For the purpose of this case, the averments of the petition and third division of the answer must be treated as true. If so, then defendants are encroaching upon and obstructing the only street by which plaintiff has convenient access to his homestead abutting thereon. The defendants justify this by a decree in an action wherein their grantor was plaintiff and the city of Perry, within whose limits the property is located, was defendant, awarding said grantor all of said street, save a strip 13 feet wide along the east side of plaintiff's lots, as a part of block 4 to the east, and belonging to them. Plaintiff was not a party to that action. Is he bound by the adjudication? As contended by appellant, the decree is binding upon all citizens of the city of Perry having no interest in the street, other than as individual members of the general public. The legally constituted authorities of the city stand for and instead of its citizens, and may be said to represent them in such litigation. Clark v. Wolf, 29 Iowa, 197;Lyman v. Faris, 53 Iowa, 498, 5 N. W. 621;Cannon v. Nelson, 83 Iowa, 242, 48 N. W. 1033;Dicken v. Morgan, 59 Iowa, 157, 13 N. W. 57. This is not questioned. What appellee contends is that, as owner of the property abutting on the alleged street, he has a right to and interest in the street distinct and different from that of the general public. This doctrine has been expressly recognized in this state. Cook v. City of Burlington, 30 Iowa, 94, 6 Am. Rep. 649; Warren v. City of Lyons, 22 Iowa, 351. The authorities are practically agreed to the same effect. Elliott, Roads & S. § 877. It may not be of importance to the general public

[93 N.W. 283]

whether a particular street is vacated or not. It is important to the individual owner of abutting property that he shall be able to get to and from his residence or business, and that the public shall have the means of getting there for social or business purposes. In such a case access to thoroughfares connecting his property with other parts of the town or city has a value peculiar to him, apart from that shared in by citizens generally, and his right to the street as a means of enjoying the free and convenient use of his property has a value quite as certainly as the property itself. If this special right is of value,--and it is of value if it increases the worth of his abutting premises,--then it is property, regardless of the extent of such value. Surely no argument is required to demonstrate that the deprivation of the use of property is to that extent the destruction of its value. Under the allegations of the petition, then, shutting off the approach to plaintiff's homestead was the taking of his property, and of this there has been no adjudication. Haynes v. Thomas, 7 Ind. 38;Lackland v. Railroad Co., 31 Mo. 180;Bradbury v. Walton, 94 Ky. 167, 21 S. W. 869; Heller v. Railroad Co., 28 Kan. 625; Heinrich v. City of St. Louis, 125 Mo. 424, 28 S. W. 626, 46 Am. St. Rep. 490;Bannon v. Rohemeiser, 90 Ky. 48, 13 S. W. 444, 29 Am. St. Rep. 355;Abendroth v. Railway Co., 122 N. Y. 1, 25 N. E. 496, 11 L. R. A. 634, 19 Am. St. Rep. 461;Cincinnati & Spring Grove Ave. St. Ry. Co. v. Incorporated Village of Cumminsville, 14 Ohio St. 523;Anderson v. Turbeville, 6 Cold. 150. As said in Heinrich v. City of St. Louis, supra: “There is no doubt but a property owner has an easement in a street upon which his property abuts which is special to him, and should be protected. While the owner of a lot on a public street has the same right to the use of a street that rests in the public, he at the same time has other rights which are special and peculiar to him, and the right of...