Minear v. Plowman

• Citation: 197 Iowa 1188,197 N.W. 67
• Decision Date: 12 February 1924
• Docket Number: No. 35624.,35624.
• Parties: MINEAR ET AL. v. PLOWMAN ET AL.
• Court: Iowa Supreme Court

197 Iowa 1188

197 N.W. 67

MINEAR ET AL.

v.PLOWMAN ET AL.^a1

No. 35624.

Supreme Court of Iowa.

Feb. 12, 1924.

Appeal from District Court, Van Buren County; C. W. Vermilion, Judge.

Action to enjoin defendants, township trustees and sheriff, from condemning land for cemetery purposes. Injunction was denied, from which order plaintiffs appeal. Affirmed.Cornell & McBeth, of Keosaqua, for appellants.

Newbold & Newbold, of Keosaqua, for appellees.

ARTHUR, C. J.

The petition alleges that plaintiffs are the owners of a farm of about 153 acres situated in Van Buren county, Iowa; that defendants Plowman, Johnson, and Staubus are township trustees of Lick Creek Township, and defendant Kinsey is the sheriff of Van Buren county; that said defendants, trustees, caused to be filed with defendant sheriff an application for condemnation for cemetery purposes a strip of plaintiffs' land 100 feet wide and 300 feet long adjacent to the north side of the existing cemetery; that said sheriff caused to be served on plaintiffs notice of said condemnation proceedings; that said trustees in said condemnation proceedings are acting in an illegal manner and without authority of law, are seeking to deprive plaintiffs of their rights in the property without due process of law, and, unless restrained, plaintiffs will suffer great and irreparable injury, and that they have no adequate remedy at law. The petition further alleges that the action of the trustees in proceeding to condemn said real estate is prompted by ill feeling and malice and is therefore an abuse of discretion and without jurisdiction; that the proposed enlargement of said cemetery is not necessary; that the present cemetery is sufficiently large to meet present needs. The petition further alleges that plaintiffs offered to purchase two lots lying on the east side of said cemetery and convey same to said trustees for cemetery purposes without cost to the township, if said trustees would not proceed to condemm the property now sought to be acquired; that the trustees present at the time the offer was made assented to the proposition; that thereafter said two lots were purchased by one of the plaintiffs and a deed executed therefor to the trustees, which deed was recorded, and that said trustees are thereby estopped from condemning said propertyon account of the execution and delivery of said deed.

The proceedings in condemnation alleged are: Application by the trustees addressed to the sheriff stating that public necessity demands taking and holding for the use and benefit of the public additional cemetery ground, consisting of the strip of plaintiff's land above described; that the trustees have been unable to purchase sufficient ground from the plaintiffs for said purposes; that demand has been made upon plaintiffs that they sell said tract of land and they refused so to do. The application requests the sheriff to summon commissioners to investigate the land and assess damages which the owners will sustain by appropriating said land to be used for cemetery purposes; that the sheriff summon six freeholders of said county not interested in the same or a like question to appear on said premises at such time as the sheriff may designate to make assessment of damages which the owners of said real estate will sustain by appropriating said real estate for cemetery purposes, and that the sheriff give notice to said owners of time and place of assessing damages.

In accordance with said application the defendant sheriff duly notified plaintiffs in writing of summoning of commissioners to assess damages and of the time and place of the meeting of commissioners to assess damages sustained by plaintiffs by taking their property for cemetery purposes. At this stage of the proceedings, plaintiffs began this action and applied for temporary injunction, which was granted. Defendants demurred to the petition on the ground “that the facts stated in the petition do not entitle plaintiffs to the relief demanded,” and moved to dissolve the temporary injunction on the grounds: (1) That plaintiffs have a speedy and adequate remedy at law; (2) that an independent action in equity to enjoin condemnation proceedings is a collateral attack and will not lie; (3) that the right of appeal is the only remedy given a landowner in condemnation proceedings; (4) that a court of equity has no authority or jurisdiction to interfere in condemation proceedings; (5) because the ground relied upon for an injunction may be urged in defense to the condemnation proceedings.

The motion to dissolve the temporary injunction and demurrer to the petition were together submitted to the court. The motion and demurrer were sustained. Plaintiffs elected to stand on their petition, and the action was dismissed and judgment entered against plaintiffs for costs, from which ruling and judgment this appeal is taken.

II. The condemnation proceeding is under section 585, Code Supplement 1913, which reads:

“The township trustees are hereby empowered to condemn, or purchase and pay for out of the general fund, and enter upon and take, any lands within the territorial limits of such township for the use of cemeteries, in the same manner as is now provided for cities and towns. * * *”

The statutes referred to in the above-quoted statute are sections 884 and 2029, Code 1897. Section 2009, Code Supplement 1913, provides...