Meyer v. City of Burlington

• Decision Date: 09 December 1879
• Citation: 52 Iowa 560,3 N.W. 558
• Parties: B. MEYER, APPELLEE, v. THE CITY OF BURLINGTON, APPELLANT.
• Court: Iowa Supreme Court

52 Iowa 560

3 N.W. 558

B. MEYER, APPELLEE,

v.THE CITY OF BURLINGTON, APPELLANT.

Supreme Court of Iowa.

Filed December 9, 1879.

Appeal from Des Moines circuit court.

Action to recover damages alleged to have been sustained by a change of grade of a street. There was a trial by the court, and a finding in substance as follows: That the grade of the street in question was raised about three feet after it had been established; that upon the plaintiff's lot fronting on the street was a frame building, occupied for business purposes, and from which the plaintiff was receiving rent; that the raising of the grade of the street made it necessary to raise the building; that while the building was being raised it was untenantable, and the plaintiff lost rent amounting to $75; that the cost of raising the building to grade was $319.46; and that the rental value was the same as before. The court further found that there was evidence tending to show that the market value of the lot was increased by the change of grade.

The court held, as a matter of law, that any increase in the market value of the lot, caused by the change of grade, could not be set off against the damages sustained by the plaintiff by reason of the change of grade, and that the plaintiff was entitled to recover the amount necessarily expended by him in raising the building and rendering it as tenantable as it was before the change of grade, and the loss of rent necessarily incurred during the raising of the building. The court accordingly rendered judgment for the plaintiff for $394.46. The defendant appeals.C. L. Poor and T. Hedge, Jr., for appellant.

T. J. Trulock and W. E. Blake, for appellee.

ADAMS, J.

It is provided in section 469 of the Code that “when any city or town shall have established the grade of any street, and any person shall have built or made any improvements on such street, according to the established grade thereof, and such city or town shall alter said established grade in such a manner as to injure or diminish the value of said property, said city or town shall pay the owner of said property so injured the amount of such damage or injury.” Such being the statute, the plaintiff's right of recovery is clear, provided he has sustained an injury within the meaning of the statute. The court below held that he had, even though the market value of the lot might have been increased by the change.

In our opinion it cannot be said that a change is such as “to...