Long v. Wilson

• Decision Date: 28 January 1903
• Citation: 93 N.W. 282,119 Iowa 267
• Parties: B. F. LONG v. NANNIE BELLE WILSON et al., Appellants
• Court: Iowa Supreme Court

93 N.W. 282

119 Iowa 267

B. F. LONG v. NANNIE BELLE WILSON et al., Appellants

Supreme Court of Iowa, Des Moines

January 28, 1903

Appeal from Dallas District Court.--HON. 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 seventy 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 thirteen 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 thirteen 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.

Giddings & Winegar for appellants.

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

OPINION

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 thirteen 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; Warren v. City of Lyons, 22 Iowa 351. The authorities are practically agreed to the same effect. Elliott, Roads & Streets, section 877.

It may not be of importance to the general public 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. 163 (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. Rohmeiser, 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, 46 Tenn. 150, 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 ingress and egress is one of them. This right of access is appurtenant to his lot, and is private property. To destroy that right is to damage his property, and when this is done for the public good the public must make just compensations."

We are not questioning the power of the legislature, through the municipality, to vacate streets. That has been fully recognized by this court. McLachlan v. Town of Gray, 105 Iowa 259, 74 N.W. 773, and cases cited. Conceding such power, it does not follow that it may be exercised without compensating abutting owners for the damages occasioned thereby. Paul v. Carver, 24 Pa. 207 (64 Am. Rep. 649), and McGee's Appeal, 114 Pa. 470 (8 A. 237), are often cited as announcing that compensation cannot be exacted in event of the vacation of a street. Although the opinions broadly state this, it is to be observed that they were causes in which the municipalities were sought to be enjoined from exercising the power to vacate, and did not necessarily involve the right of the abutter to recover damages. The power to vacate, as we think, does not necessarily depend on the absence of the right to recover damages for the taking of private property. Damages might be awarded in a subsequent action.

But these cases are to be further distinguished, in that the public had but an easement, and the vacation amounted to no more than a surrender of this to the owner of the fee. They seem in this respect to be in harmony with our own decisions relating to the vacation of a country highway. In deciding this question, the court, in Brady v Shinkle, 40 Iowa 576, said: "That a landowner may sustain damage, according to the common acceptance of the word on account of a vacation of a highway, as stated in the question, cannot be doubted. It is equally true that inconvenience and damage may result to him by closing a road which is miles away from his land. A farmer may suffer serious loss and inconvenience by the vacation of a highway over which he is accustomed to travel and haul the productions of his farm to market, though his land abuts upon no part of it. All who use the road suffer in the same way. While one may be more largely injured than others, he yet sustains damages of the same character and nature which all who use the road--the public generally--suffer. While the road exists, he has a right to the easement. But this right is not different from that enjoyed by the public generally. His right then, is such as is enjoyed by the public. His damages are those shared by the public,...