Pederson v. Town of Radcliffe

• Decision Date: 07 February 1939
• Docket Number: 43374.
• Citation: 284 N.W. 145,226 Iowa 166
• Parties: PEDERSON v. TOWN OF RADCLIFFE et al.
• Court: Iowa Supreme Court

284 N.W. 145

226 Iowa 166

PEDERSON v. TOWN OF RADCLIFFE et al.

No. 43374.

Supreme Court of Iowa.

February 7, 1939

Appeal from District Court, Hardin County; T. G. Garfield, Judge.

Suit to enjoin nuisances which obstructed the travel of an alley and a street. Defense was that appellee town had vacated the alley and the street by two ordinances. Trial court sustained the ordinance vacating the alley and declared the ordinance vacating the street to be invalid. Both parties appeal.

Affirmed in part. Reversed in part.

Lee Steinberg & Walsh, of Ames, for appellant.

Peisen & Soper, of Eldora, for appellees.

MILLER, Justice.

This suit challenges the validity of two ordinances of the town council, one of which purported to vacate a portion of a street and the other a portion of an alley shown in Blocks 7 and 8 of Drake and Ballard's Addition to the town of Radcliffe. The plat of said Blocks 7 and 8 is as follows:

(Image Omitted)

As above indicated, Block 7 of said addition is bordered by Ionia, Dewey, Minnie and Park Streets, and Block 8 of said addition is bordered by Ionia, Park and Minnie Streets and a county highway. The county highway is gravelled and extends along the east limits of the town.

Appellant, Pederson, is the owner of Lots 8, 9, 10 and 11 in said Block 7. Appellee, Anders, is the husband of one of four owners of Lots 2, 3 and 4 in Block 7, and Lot 2 in Block 8, is in possession of said four lots and is a member of the town council. The other appellees include the mayor and the other councilmen, and the four owners of the lots occupied by Anders.

Anders closed the alley along the south side of Lot 19 in Block 7 and Lot 1 in Block 8 some time before the commencement of this suit, and also placed a fence in the right of way along the south side of the lots occupied by him in Blocks 7 and 8. The fence extended into the right of way about 12 or 15 feet. Ionia Street is 66 feet wide. The alleys are 20 feet wide. Appellant commenced this suit to secure the reopening of said alley and the removal of Anders' fence from the right of way of Ionia Street.

Shortly after the commencement of the suit, the town council undertook, at a special meeting, to enact two ordinances, one of which attempted to vacate the alley that Anders had closed, and the other attempted to vacate Ionia Street between Dewey Street and the public highway on the east of the town limits. No petition was filed to secure such ordinances. This suit was discussed by the council when the ordinances were enacted and they were advised that the ordinances would be a defense to the suit. The ordinances were plead as a defense in the answer of appellees.

In response to the answer, appellant replied that the ordinances were void because they were arbitrary, unwarranted exercise of authority, undertaken after the commencement of the suit, for the purpose of creating a defense thereto, not in good faith, after the street and alley had been in use a long time, and when the vacation thereof was contrary to and subversive of the interests of the citizens of the town. The allegations of the reply were also included in an amendment to the petition.

The trial court determined that there was not sufficient inconvenience of appellant shown to require opening of the alley, and dismissed that portion of his petition. Appellant has appealed therefrom.

The trial court also determined that the fence in Ionia Street was a nuisance, that the vacation of the street was a serious inconvenience to appellant and to the public, was undertaken at a special meeting of the council for the obvious purpose of creating a defense to this suit, that the council intended to keep the street open to the public although vacated and unfenced, that the action taken in regard to the vacation of the street was not only unwise and not for the public good but was also arbitrary and an abuse of discretion on the part of the council. Accordingly, appellees were enjoined from obstructing or interfering with the public travel on Ionia Street, east of Dewey Street, and the ordinance which attempted to vacate such portion of the street was set aside as invalid. Appellees...