Louden v. Starr
Decision Date | 02 October 1915 |
Docket Number | 29553 |
Citation | 154 N.W. 331,171 Iowa 528 |
Parties | WILLIAM LOUDEN et al., Appellants, v. J. P. STARR, Mayor, et al., Appellees |
Court | Iowa Supreme Court |
Appeal from Jefferson District Court.--HON. FRANK EICHELBERGER Judge.
ACTION in certiorari to declare void a certain ordinance passed by the defendant city vacating a certain street. Judgment for the defendants.
Affirmed.
Rollins J. Wilson, Leggett & McKemey, for appellants.
E. F Simmons, City Solicitor, J. P. Starr, and R. J. Bannister for appellees.
This is a proceeding in certiorari to have an ordinance of the city of Fairfield declared invalid. The issue tried was whether the city council exceeded its authority and acted illegally in vacating the west half of North Seventh Street and conveying the part vacated to the Chicago, Rock Island & Pacific Railway Company. The cause was tried to the court upon evidence taken in open court, and upon a final hearing, it was found that the ordinance in question was a valid ordinance; that the city council, in adopting the ordinance, was in the exercise of the powers granted by the legislature to the councils of cities and towns. The writ of certiorari, theretofore issued by the court, was quashed and the ordinance sustained. From this action the plaintiffs appeal.
The ordinance in question is known as No. 134, and is, so far as material to this controversy, as follows:
This ordinance and its conditions, so far as the railroad Company was involved, were duly accepted by the company on the 10th day of June, 1912.
It appears that the plaintiffs herein, as trustees for the Louden Machinery Company, hold the legal title to the west half of Lots 2 and 3 in Block 4, and all of Lots 2, 3, 5 and 6 in Block 9 of Gage's Addition to the city of Fairfield, and are the successors in interest and privies in title to Electa W., Theodore S., Cranmore W. and Sarah J. Gage; that this land lies immediately east of and abuts on North Seventh Street, and is between West Broadway on the south and West Hempstead Street on the north; that there is a street running east and west between Blocks 4 and 9, known as Briggs Street.
It appears that, prior to the 9th day of August, 1870, the Gages were the owners of the land now owned by the plaintiffs, with other land, situated in the north half of the southwest quarter of Section 26, Township 72, Range 10; that on said 9th day of August, the Gages, being the owners of and then in possession of said land, sold and conveyed to the Chicago, South Western Railway Company a portion of the land then owned by them; that in the deed of conveyance it was agreed that each party to said deed should keep open for public use a street four rods wide along the east side of the tract therein conveyed, two rods in width to be taken from the land conveyed, and two rods in width from the land of the grantors adjoining this strip; and that North Seventh Street is the street referred to in said deed.
The plaintiffs allege in their petition that the street so set apart as North Seventh Street was dedicated to the public by the joint action of the Gages and the Chicago, South Western Railway Company. It appears that these plaintiffs are the successors in title from the Gages to the land now owned by them, and that the Chicago, Rock Island & Pacific Railway Company, mentioned in the ordinance, is the successor of the Chicago, South Western Railway Company.
[SEE PLAT IN ORIGINAL]
We herewith attach a plat of a portion of North Seventh Street and the lots adjacent thereto on the east.
The railroad track on the east side of Seventh Street, shown on the plat, adjacent to plaintiffs' property, was placed there under and by virtue of an agreement entered into between the plaintiffs and the Rock Island Railway Company. The freight house of the Chicago, Rock Island & Pacific Railway Company is immediately west of plaintiffs' buildings, as shown upon this plat, and west of the street known as North Seventh Street. The passenger depot of the railway company stands across West Broadway. West Broadway, in its full width, is eighty feet wide. The track on the west side of plaintiffs' buildings is used by the railway company in carrying freight to plaintiffs' buildings. The greater part of the freight is taken from the car directly into the building. There are doors on the west side of the building on Block 9, for receiving freight from the cars, and there are no platforms in front of these doors. The freight is delivered directly from the cars into the building. No other cars, except those carrying freight to plaintiffs' warehouse, were permitted to use or to occupy this track. This track is about four feet, eight inches wide, and the east rail about two feet from plaintiffs' building, leaving just room enough to allow a car to pass freely down the track.
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