Nedderman v. City of Des Moines, 43406.

• Citation: 221 Iowa 1352,268 N.W. 36
• Decision Date: 19 June 1936
• Docket Number: No. 43406.,43406.
• Parties: NEDDERMAN et al. v. CITY OF DES MOINES et al. (BECK, Intervener).
• Court: United States State Supreme Court of Iowa

221 Iowa 1352
268 N.W. 36

NEDDERMAN et al.
v.
CITY OF DES MOINES et al. (BECK, Intervener).

No. 43406.

Supreme Court of Iowa.

June 19, 1936.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

Action in equity to enjoin defendants from interfering with plaintiffs in the construction of a store building on certain lots in city of Des Moines, and for decree establishing validity of a building permit issued therefor. Fremont L. Beck intervened praying that the tax deed, constituting plaintiffs' title, be set aside and canceled. From judgment and decree for plaintiffs, defendants and intervener have appealed.

Affirmed.

ALBERT and ANDERSON, JJ., dissenting.

Van Liew, Weaver, Ralls, McNutt & Ash, of Des Moines, for appellants.

McMartin, Herrick & Langdon, of Des Moines, for appellees.

Emmert, James & Lindgren, of Des Moines, for intervener.

RICHARDS, Justice.

Leaving the intervener's petition for discussion in a later portion of this opinion, we first proceed to a consideration of the issues as between plaintiffs and defendants, by all of whom the following facts are conceded: That plaintiffs are the holders of a valid tax deed to the city lots involved, dated April 1, 1935, issued pursuant to a county treasurer's tax sale for general taxes; that at the time of all transactions involved in this case said lots have been within a locality zoned for commercial or business purposes by the zoning ordinances of said city; that said lots are a part of a subdivision designated as Fair Acres, within the city of Des Moines, the subdivision containing 64 lots; that the person platting the subdivision has conveyed nearly all of the lots, including the two to which plaintiffs claim title under tax deed; that each deed of conveyance by the proprietor of the subdivision contained restrictive provisions, one being that no business or store building shall be placed or constructed on the premises prior to the year 1950; that on June 4, 1935, the defendant city issued to plaintiffs a written permit to erect a one-story frame building

[268 N.W. 37]

upon one of the lots in question to be used as a retail store; that afterwards a written notice, bearing date June 11, 1935, was given to plaintiffs by defendant city informing plaintiffs that by roll call No. 950, passed June 10, 1935, by the city council of defendant city, the building department had been ordered and directed to revoke the building permit issued June 4, and notifying plaintiffs that the permit was revoked and that plaintiffs were to immediately cease all building operations.

On July 10, 1935, plaintiffs brought this equity action now before us, the petition containing the foregoing matters, and praying that the building permit above mentioned be decreed to be valid and binding upon defendants; that plaintiffs be authorized to proceed thereunder with the construction of the building; that the resolution of the defendant city of June 10, 1935, be decreed null and of no force and effect; that defendants be enjoined from interference with the construction of said building in accordance with said permit; and that plaintiffs have general equitable relief. For answer defendants set out a provision in the above-mentioned zoning ordinance which recites: “It is not intended by this ordinance to interfere with or abrogate or annul any easements, covenants or other agreements between...