McKean v. City of Mount Vernon

• Decision Date: 09 June 1879
• Citation: 51 Iowa 306,1 N.W. 617
• Parties: A. J. MCKEAN, APPELLEE, v. THE CITY OF MOUNT VERNON, APPELLANT.
• Court: Iowa Supreme Court

51 Iowa 306

1 N.W. 617

A. J. MCKEAN, APPELLEE,

v.THE CITY OF MOUNT VERNON, APPELLANT.

Supreme Court of Iowa.

Filed June 9, 1879.

Appeal from Linn circuit court.

The plaintiff filed in the court below an application to have all of McKean's addition to Mount Vernon, lying northwest of Jefferson street and southeast of Washington street, severed from and stricken out of the limits of said city. The territory described in the application was laid out and platted into blocks, lots, streets and alleys, as an addition to the city, by the plaintiff, in the year 1857. There was a demurrer to the application, which was overruled. The defendant failing to plead over, there was a decree for the plaintiff as prayed, and commissioners were appointed as provided by statute, to adjust the terms upon which the property described shall be severed from the city. The defendant appeals from the order of the court overruling the demurrer.J. C. Davis, for appellant.

J. B. Young, for appellee.

ROTHROCK, J.

--Sec. 440 of the Code provides that “when the inhabitants of a part of any town or city shall desire to have the part of the territory of such city or town in which they reside, severed from, or stricken out of the limits of such city or town, they may apply by petition in writing, signed by a majority of the resident property holders of that part of the territory of such city or town, to the circuit court of the county, which petition shall describe the territory proposed to be thus severed or stricken out of the limits of such city or town, and have attached thereto an accurate map or plat thereof, and shall also name the person or persons authorized to act in behalf of the petitioners in the prosecution of said petition.” Counsel for appellant contends that the demurrer should have been sustained, because it appears from the petition that the land sought to be severed from the limits of the city was, in 1857, laid out and platted into blocks, lots, streets and alleys, and the statute does not apply to property thus situated, but only to territory within a city or town not laid out in lots and blocks. We are not authorized to give the statute so narrow a construction. It applies to any and all territory within a city or town, whatever its boundaries may be, or however it may be situated. If it had been intended to limit its operation, apt words would have been used for that purpose. It is suggested that the statute cannot apply to territory in which...