McCarl v. Clarke County
| Decision Date | 06 October 1914 |
| Docket Number | 29557 |
| Citation | 148 N.W. 1015,167 Iowa 14 |
| Parties | GEORGE MCCARL, Appellee, v. CLARKE COUNTY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Clarke District Court.--HON. H. K. EVANS, Judge.
ACTION at law for damages because of the alleged vacation of a public highway. Trial to the court, without a jury. Judgment for plaintiff. Defendant appeals.
Reversed.
Henry Stivers, for appellant.
O. M Slaymaker and W. B. Tallman, for appellee.
This action was brought in 1912 under the law as it existed prior to the road laws of the Thirty-Fifth General Assembly. (Chapters 122, 123.) In 1911 one Barr owned a farm; the eighty acres of land to be described. He sold it to plaintiff, who owned and farmed it for the year 1912, when he sold it. Barr assigned his claim to the plaintiff. The court allowed $ 200 as damages, for depreciation in rental value of the land of $ 100 for each year.
The land is the S. E. 1/4 of the N.W. 1/4 and the N. E. 1/4 of the S.W. 1/4 of the section. The buildings are on the east side of the land and halfway north and south. There is, and for twenty years has been, a regularly established highway running east and west on the north side of the section, also one on the south side, and one running north and south through the center of the section. The last mentioned is the one in controversy.
About eight or ten years ago another road was established running north and south on the east side of the section. The north end of plaintiff's land is therefore one-fourth mile from the road on the north, and the south end of his land is one-fourth mile from the road on the south of the section, and his house is one-half mile from these roads. His is the only house on the one mile of road through the center of the section. This road is described by some of the witnesses as a by-road, and it seems to have been but little traveled.
In the south half of the mile of road in question, and near the south end, the adjacent owner has constructed three wire fences across the highway. We do not understand that plaintiff makes any claim that defendant county is responsible for the obstructions by these fences. In this highway, both in the north and south halves, are three ditches, extending partially across the highway, but not entirely obstructing it. Crossing this mile of road, near the north end, is a stream which plaintiff describes as thirty to forty feet wide and fifteen or twenty feet deep; the sides nearly straight up and down; it cannot be crossed with a team. Until five or six years ago, there was a county bridge across this stream. At about that time the bridge was washed out. The county, though requested to rebuild it, has refused to do so. The road has not been worked since about that time.
A witness, who was a member of the board of supervisors, testifies, giving his conclusion, in part, that in regard to the road in question:
It was really the understanding that the old road was to be vacated and the one-half mile east established. But no action was taken as to the vacation of the old road. We concluded to do no further work on the old road.
There is no claim that there is any record showing that such was the understanding and no claim that the road was in fact vacated in the manner provided by statute. Though the question of abandonment of this road is referred to in the pleadings, it is not relied upon, nor has it been argued.
Plaintiff seeks to bring his case within the rule of McCann v. Clarke County, 149 Iowa 13, 127 N.W. 1011. It was there held that the vacation of a highway adjacent to a tract of land, to which the owner has no other convenient means of access, causes a special damage to the owner, separate and distinct from that suffered by the general public, and that he is entitled to recover such damages.
The claim here is that the failure of the county to rebuild the bridge and work the road is equivalent to a vacation of the highway, or, as counsel for plaintiff state it:
Plaintiff claims damages in this case because of the failure and refusal of defendant to keep up the bridges and work the highway in this section, so that he will have ingress and egress to and from his land, and because it has discontinued such highway. He does not claim damages by reason of any statutory provision; but he claims: That, as the road furnishes him the only means of access to his property, the county owes him the duty of keeping it in repair, and that the failure to do so on its part renders it liable to him in damages. That as the county is liable for damages, if the highway is formally vacated, it cannot, by failure to work and keep up said highway, in effect vacate the same and thereby escape the payment of damages, and also claims that its act in discontinuing the highway makes it liable in damages. That a landowner has such an interest or property right in an abutting highway, which furnishes him ingress to and egress from his land, that if such highway is taken away from him by the county, and his ingress and egress is interfered with, he is entitled to recover damages in proportion to his injury. This proposition is laid down by this court in the case of McCann v. Clarke County, 149 Iowa 13, 127 N.W. 1011.
This presents a new question for determination. Appellant concedes that, if the board of supervisors had actually vacated the road, it would be liable, but contends that there was no statute in Iowa at that time charging the county with the duty of repairing roads and bridges; that the power vested in the board is permissive only, and that the board has a discretion in the matter; that the acts of the board are legislative and governmental in their character, and not subject to review by the courts. It concedes that if the county undertakes to build bridges, and builds negligently, it is liable to a person injured through such negligence.
Section 422, par. 17, of the Code, provides that the board of supervisors has power "to lay out, establish, alter or discontinue any county highway heretofore laid out, or hereafter to be laid through or within the county, as may be provided by law." And section 1484 provides that any person desiring the establishment, vacation or alteration of a road shall file in the auditor's office of the proper county a petition in substance as follows, etc.
In the last section, the same method of procedure is prescribed for vacating as for establishing a road. Our attention has not been called to any other provision of the statute in regard to vacating or discontinuing highways. Under section 1484, it has been held that, until such a petition has been filed, the board has no jurisdiction, and that the county could not be estopped by the acts of the auditor and the board from setting out the illegality of the proceedings. Curtis v. Pocahontas County, 72 Iowa 151, 33 N.W. 616. The board can act upon petition only. Lamansky v. Williams, 125 Iowa 578, 101 N.W. 445. Public highways can be discontinued or vacated only after proper proceedings had in the manner pointed out by statute. They cannot be discontinued at the pleasure of a town or of the officers upon whom the power of discontinuing or vacating highways is conferred. 37 Cyc. 180. Statutory notice must be given. Moffitt v. Brainard, 92 Iowa 122, 60 N.W. 226, and note. And it is held in some states that an order or judgment discontinuing a public highway must substantially conform to the statutory requirements. 37 Cyc. 187. In Minnesota it has been held that the order must be complete and sufficient on its face, and its defects cannot be helped out or supplied by parol. Keyes v. Minneapolis Ry. Co., 36 Minn. 290 (30 N.W. 888).
It is conceded by appellee in argument that, in case of the vacation of a road, the damages would accrue at once, and to the person owning the land at the time of the vacation, but claims that, in case of the discontinuance of the road, the damages do not accrue in one sum, but are continuing.
The theory of plaintiff on the trial was, and that is the argument in this court, that the county might at any time conclude to rebuild the bridge, and that, for this reason, the damages would be continuing, which would negative the thought, it seems to us, that there had been a vacation. A vacation of the road would necessarily be permanent, whereas, under plaintiff's theory, he would have a right of action for a temporary failure to rebuild.
In the claim presented to the board of supervisors, it is stated:
You are notified that such damages are continuous, and the undersigned will, from time to time, claim such additional damage as he suffers.
The evidence was directed to the difference in the rental value for the years 1911 and 1912, and this was the theory of the trial court in awarding damages. The award was for $ 100 for the year 1911 to Barr, the then owner of the land, and whose claim had been assigned to plaintiff, and $ 100 to plaintiff for the year 1912.
It appears to us that plaintiff is driven from, or abandons, his position that the mere failure of the county to rebuild the bridge, and the failure of the county, or the township officers, to work the road, is equivalent to a vacation of the road, and that such failure is indirectly a vacation. But counsel seeks to make a distinction between a vacation and a discontinuance of the road. They say that, if the road is vacated, it is necessarily a discontinuance, but that there may be a discontinuance without a vacation. If this last proposition be true, they would not come within the rule of the McCann case, supra, where it was ruled that the abutter may recover for the vacation of a road. But we are of opinion that there is no distinction,...
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