Moffit v. Brainard

Decision Date13 October 1894
PartiesHENRY F. MOFFITT et al., Appellants, v. SILAS BRAINARD
CourtIowa Supreme Court

Appeal from Keokuk District Court.--HON. A. R. DEWEY, Judge.

ACTION in equity to enjoin the obstruction of a highway. Judgment against plaintiffs for costs, and they appeal.


C. M Brown for appellants.

A. G Schulte for appellee.



It appears that plaintiffs own land abutting upon that part of the highway sought to be vacated; that defendant petitioned for the vacation of the highway; a commissioner was appointed, who reported, recommending the vacation, whereupon notice of the hearing by the board of supervisors was given only by publication; that at the date fixed in the notice the board vacated the highway as prayed; that the highway thus vacated was convenient and necessary for the use of plaintiffs and others; that none of them were served with notice, though their ownership of land abutting upon it appeared from the transfer books in the office of the auditor of the county at the time said petition was filed and notice published. Their damages for such vacation have not been assessed. The published notice was not directed to anyone by name, and plaintiffs never saw it, and had no knowledge of it until long after the highway was vacated, and defendant had closed it up. It is charged that the board acted without jurisdiction, and that its action attempting to vacate the highway was void. An injunction is prayed for to restrain defendant from obstructing the highway. A demurrer to the petition because the court had no jurisdiction, and the facts stated did not entitle plaintiffs to the relief demanded, was sustained, and, plaintiffs standing upon their petition, judgment was rendered against them for costs.

II. This record presents two questions for determination: First. Was the action of the board of supervisors in vacating the highway void by reason of want of jurisdiction? And, second, may plaintiffs avail themselves in such a case of the remedy by an action in equity for an injunction, or are they limited to certiorari proceedings? We first consider the question of notice. The form of notice required to be given is prescribed by the Code, and the notice must be served "on each owner or occupier of land lying on the proposed highway, or abutting thereon, as shown by the transfer books in the auditor's office, who resides in the county, in the manner provided for the service of original notice in an action at law;" and it is also provided that the notice be published for four weeks. Code, section 936. The giving of the notice required by the statute is necessary in order to confer jurisdiction on the board of supervisors to act in the matter. No notice was ever served upon the plaintiffs, who were owners of land abutting on the highway proposed to be vacated. The fact of their ownership appeared from the transfer books in the auditor's office, and they were in fact residents of the county, and lived upon their land. Under such circumstances the board had no jurisdiction to vacate the highway, and its action was absolutely void. Snyder v. Foster, 77 Iowa 638, 42 N.W. 506; Railway Co. v. Ellithorpe, 78 Iowa 415, 43 N.W. 277; State v. Weimer, 64 Iowa 243, 20 N.W. 171; State v. Anderson, 39 Iowa 274; McBurney v. Graves, 66 Iowa 314, 23 N.W. 682; State v. Minneapolis & St. L. Ry. Co., 88 Iowa 689, 56 N.W. 400; State v. Iowa Cent. R'y Co., 91 Iowa 275, 59 N.W. 35. Even the published notice did not comply with the requirements of the statute. It did not set out the names of the owners of the land. State v. Iowa Cent. R'y Co., 91 Iowa 275, 59 N.W. 35.

III. Are the plaintiffs limited to proceedings by certiorari? That certiorari is a proper remedy in such a case is well settled. Tiedt v Carstensen, 61 Iowa 334, 16 N.W. 214; Smith v. Powell, 55 Iowa 215, 7 N.W. 602; Myers v. Simms, 4 Iowa 500; Stubenrauch v. Neyenesch, 54 Iowa 567, 7 N.W. 1; Code, sec. 3216. We do not think, however, that certiorari is the exclusive remedy in such cases. Nor do we find that this court has so held in any case where the facts were as in the case at bar. The opening or vacating of highways, and their illegal obstruction, has often been prevented by injunction, and such a procedure has been recognized in many cases as proper. Bolton v. McShane, 67 Iowa 207, 25...

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