McLachlan v. Inc. Town of Gray

• Court: United States State Supreme Court of Iowa
• Writing for the Court: WATERMAN
• Citation: 105 Iowa 259,74 N.W. 773
• Parties: MCLACHLAN v. INCORPORATED TOWN OF GRAY ET AL.
• Decision Date: 09 April 1898

105 Iowa 259
74 N.W. 773

MCLACHLAN
v.
INCORPORATED TOWN OF GRAY ET AL.

Supreme Court of Iowa.

April 9, 1898.

Appeal from district court, Audubon county; W. R. Green, Judge.

Action in equity to restrain the vacation of a highway within the limits of the incorporated town of Gray. There was a hearing on the merits, and a decree in favor of the plaintiff. The defendants appeal. Reversed.

[74 N.W. 773]

H. F. Andrews, for appellants.

Wonn & Noon and Theo. F. Myers, for appellee.

WATERMAN, J.

The petition alleges that plaintiff owns a tract of land along the south side of which runs a highway leading into the town of Gray; that he has erected expensive buildings, and made improvements upon that portion of his land abutting on said highway; that part of the highway is included within the limits of the incorporated town of Gray; that the council of said town, having provided another highway, but one that is not convenient for plaintiff's use, passed an ordinance vacating the part of the highway that is within the limits of the town. The plaintiff claims that he is thereby deprived of convenient access to his land and from his land to the town, all to his great injury and damage. No part of the highway is on plaintiff's land. The defense is, in substance, that the town had good reason for vacating the highway. There was a temporary injunction, and upon a hearing plaintiff had a decree perpetually enjoining defendants from vacating said highway. The town, the members of the council, and the street commissioner are made defendants herein.

2. Appellants contend that plaintiff is entitled to no such relief in equity, and this, we think, is so. It is well established that courts of equity will not afford a party aid to protect his rights if he has a plain, speedy, and adequate remedy at law. The remedy here should have been sought through proceedings by certiorari. Rockwell v. Bowers, 88 Iowa, 88, 55 N. W. 1;Stubenrauch v. Neyenesch, 54 Iowa, 567, 7 N. W. 1; 2 Dill. Mun. Corp. §§ 611-925. In the opinion of the trial judge, which is set out in the abstract, it is said: “No objection is made in this case to the form of this action, and, if there are any valid objections thereto, I think they are now waived.” Appellee urges the claim of waiver here. We do not think it good. Defendants have from the first most strenuously insisted that plaintiff was not entitled to an injunction. We do not think they are precluded from giving a reason in support of that contention in this court merely because they did not assign it in the court below. What they set up is not a new claim, but rather an additional argument in favor of a claim that they have insisted on from the outset. Bond v. Railway Co., 67 Iowa, 712, 25 N. W. 892. In each of the first-cited cases, which were equitable actions for injunctions, the point was ruled by this court after a trial on the merits below. If the objection here was to the forum, and not to plaintiff's right, the failure to make a motion to transfer to the proper docket would be a waiver. Corey v. Sherman, 96 Iowa, 114, 64 N. W. 828, and cases cited. So, too, if the facts as alleged were proper in kind, but merely insufficient, so that the want might have been supplied, a failure to demur would have precluded...