Louden v. Starr
| Decision Date | 02 October 1915 |
| Docket Number | No. 29553.,29553. |
| Citation | 171 Iowa 528,154 N.W. 331 |
| Parties | LOUDEN ET AL. v. STARR, MAYOR, ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jefferson County; Frank Eichelberger, Judge.
Action in certiorari to declare void a certain ordinance passed by the defendant city vacating a certain street. Judgment for defendants, and plaintiffs appeal. Affirmed.
Salinger, J., dissenting in part.Rollin J. Wilson and Leggett & McKemey, all of Fairfield, for appellants.
E. F. Simmons, City Sol., and J. P. Starr, both of Fairfield, and R. J. Bannister, of Des Moines, 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, therefore, 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:
Sec. 2. That all that part of the west one-half of North Seventh street, between the south line of West Grimes street and the north line of West Broadway street, in the city of Fairfield, Jefferson county, Iowa, be and the same is hereby vacated.
Sec. 3. That all rights which may have been acquired by the public, in a certain way across the depot grounds of the Chicago, Rock Island & Pacific Railway Company between West Broadway street and West Burlington street in the city of Fairfield, be and the same are hereby surrendered and the said public way is hereby vacated.
Sec. 4. That all that part of North Seventh street in the city of Fairfield, Jefferson county, Iowa, which is vacated by section 2 of this ordinance be and the same is hereby granted to the Chicago, Rock Island & Pacific Railway Company for railroad purposes.
Sec. 5. That there is hereby granted to the Chicago, Rock Island & Pacific Railway Company the right to maintain and operate a certain railway track, now located in North Seventh street, commencing at or near the north line of West Broadway street and extending in a northerly direction across West Briggs street and then in a northwesterly direction to a connection with one of the tracks of said railway company. There is also granted to the Chicago, Rock Island & Pacific Railway Company the right to lay down and maintain a track along the east line of North Seventh street, between the north line of West Briggs street and the south line of West Grimes street, and to cross North Seventh street at or near the south line of West Grimes street, the east rail of said track when constructed shall not be a greater distance than six feet from the east line of North Seventh street. The said railway company is to have the right to connect said track, with the track first mentioned in this section, at or near the north line of West Briggs street, or may build and operate said track independently from the aforementioned track. The right to construct and operate the said track, between the north line of West Briggs street and the south line of West Grimes street, is conditioned upon the said railway company first paying or satisfying the legal damages which may accrue to the abutting property owners.
Sec. 6. In consideration of the foregoing grants, the said Chicago, Rock Island & Pacific Railway Company grants to the city of Fairfield, Iowa, a strip or tract of land sixty-six feet in width, over and across its depot grounds, in the city of Fairfield including that part of North Seventh street vacated by section two of this ordinance as an extension of and opening up of West Briggs street in the city of Fairfield, Iowa, being the street opened up across the said depot grounds under the terms of said Ordinance Number 124, and agrees to maintain reasonable safe and adequate crossings over said railway tracks for vehicles and pedestrians, which shall include the construction of approaches, plank crossing and cement walks, in accordance with the ordinance of the city of Fairfield, at the point where said West Briggs street crosses its depot grounds. And said railway company also grants to said city any and all rights they may have obtained or acquired under and by virtue of Ordinance No. 124, to that part of the east half of North Seventh street lying between the north line of West Burlington street and the south line of West Grimes street in said city. Nothing in this ordinance, however, shall be construed to prevent the said railway company from constructing and maintaining railway tracks across that portion of West Briggs street granted to the city of Fairfield, and operating railway trains thereover.
Sec. 7. This ordinance shall not be effective until accepted by the Chicago, Rock Island & Pacific Railway Company by written acceptance, to be filed with the city clerk within sixty days after the passage hereof, which written acceptance shall be entered on the records of the city as a part thereof and which written acceptance shall be construed and held as a grant to the city of Fairfield, Iowa, by said railway company of that part of its depot grounds in that city, sufficient to make an extension of West Briggs street sixty-six feet in width over and across its said depot ground, subject to the terms of this ordinance and when said acceptance is filed as aforesaid, the same together with its ordinance, shall constitute a contract between the said railway company and the city of Fairfield.
Sec. 8. When the written acceptance of the Chicago, Rock Island & Pacific Railway Company is filed and entered of record, as required by section 7 of this ordinance, then this ordinance shall be published by one insertion in the Fairfield Daily Journal, and this ordinance shall be in full force and effect from and after its publication.
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 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 N. 1/2 of the S. W. 1/4 of section 26, township 72, range 10; that on said 9th day of August, the Gages being the owners and then in possession of said land, sold and conveyed to the Chicago Southwestern 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 track 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 Southwestern Railway Company.It appears that these plaintiffs are the successors in title from the Gages, in 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 Southwestern Railway Company.
We herewith attach a plat of a portion of North Seventh street and the lots adjacent thereto on the east:
IMAGE
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 freighthouse 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 80 feet wide. The track on the west side of plaintiffs' buildings, is used by the railroad 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 4 feet 8 inches wide, and the east rail about 2 feet from plaintiffs' building, just roomy enough to allow a car to pass freely down the track.
There does not appear to have been any change in the use of North Seventh street since the vacation of it. There are no buildings on North Seventh street, north from Broadway, that open or face on Seventh street, except the plaintiffs'. After the passage of this ordinance, the railroad company opened up Briggs...
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