McLachlan v. Inc. Town of Gray

Decision Date09 April 1898
Citation105 Iowa 259,74 N.W. 773
CourtIowa Supreme Court


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.H. F. Andrews, for appellants.

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


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 the objection of insufficiency now being raised. But the objection here goes much further than in either of the instances mentioned. Unlike the case of Corey v. Sherman, supra, it is obvious that this proceeding could not have been maintained in any forum; that this is not a case in which some facts are wanting to warrant the court's action. The claim made here, and justly so, is that no state of facts would warrant the district court in interfering with properly conducted proceedings by a municipality to vacate a street. An absolute want of power is urged, and this may be set up for the first time in this court. Groves v. Richmond, 53 Iowa, 570, 5 N. W. 763;Manufacturing Co. v. Harrington, 53 Iowa, 380, 5 N. W. 568. The power to vacate streets and highways is expressly given to cities and towns. Code 1873, § 464. Gray v. Land Co., 26 Iowa, 387;Barr v. Oskaloosa, 45 Iowa, 275;City of Marshalltown v. Forney, 61 Iowa, 578, 16 N. W. 740;Dempsey v. City of Burlington, 66 Iowa, 687, 24 N. W. 508;Williams v. Carey, 73 Iowa, 194, 34 N. W. 813. The only right that a property owner has under issues like those at bar is to insist that the proceedings be regularly conducted, and for this the proper method is by certiorari.

In view of the conflicting language of some of our decisions, it may be well to say something further as to the power of the courts in cases of this character. We understand the general assembly has plenary power over streets, and may vacate or discontinue the public easement in them, and may invest municipal corporations with this authority. 2 Dill. Mun. Corp. § 666, and cases cited; Gray v. Land Co., supra; Paul v. Carver, 24 Pa. St. 207; Kimball v. Kenosha, 4 Wis. 321. In this state, a distinction, though not so expressly declared, seems to have been taken between streets and public grounds like squares. We refer to what is said in Warren v. Mayor of Lyons City, 22 Iowa, 351. The statements in this opinion seem...

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