Ridgway v. City of Osceola

• Decision Date: 21 October 1908
• Citation: 117 N.W. 974,139 Iowa 590
• Parties: RIDGWAY v. CITY OF OSCEOLA.
• Court: Iowa Supreme Court

139 Iowa 590

117 N.W. 974

RIDGWAY

v.CITY OF OSCEOLA.

Supreme Court of Iowa.

Oct. 21, 1908.

Appeal from District Court, Clarke County; H. K. Evans, Judge.

Action to recover damages for the vacation of a street and alley upon which plaintiff's property abutted. Defendant demurred to the petition, and its demurrer was sustained. Plaintiff appeals. Reversed.O. M. Slaymaker, for appellant.

Temple & Temple, for appellee.

DEEMER, J.

As the case was decided upon a demurrer to the petition, we must go to that petition for the facts. It is recited therein that plaintiff is the owner of parts of certain lots in the defendant city which were situated immediately south of the right of way of the Chicago, Burlington & Quincy Railroad as it passed through the city. Plaintiff's property is irregular in shape because the railway right of way does not conform to the other lines and boundaries of the property. The lots are 12 or 15 feet in width on the west and 170 feet wide on the east. They have a frontage of 214 feet on the south, and the north line is parallel with the railway right of way. There are two houses on plaintiff's lots, and prior to the vacation complained of there were streets on the west and south of his property and an alley on the east. Prior to the vacation, plaintiff had erected a wood and coal house and other buildings upon her lots; the alley affording access thereto.

That we may have the exact question for consideration before us, we now quote the following from the petition: “That on or about the 9th day of October, 1905, defendant, city of Osceola, did, without consent of plaintiff, by proper proceedings, vacate and close to travel said alley running north and south past and abutting on plaintiff's premises on the east, vacating and closing it from a point about 15 feet south of the northeast corner of plaintiff's lots, north to a point north of defendant's railroad company right of way, and did at the same time and in the same proceeding convey said vacated part of said alley to said defendant railroad company, and said railroad company took charge of same and barricaded said alley where vacated, closing same and stopping travel thereon, thereby rendering the back part of plaintiff's property, which abuts on said alley, and the buildings thereon, hard to access, practically worthless. That also on or about the 9th day of October, 1905, defendant, city of Osceola, did, without consent of plaintiff or recompense to her, by proper proceedings, vacate and close to travel Jackson street from a point commencing at the southwest corner of plaintiff's west lot, north across defendant's railroad company right of way, and did at the same time and by the same proceeding transfer and convey the vacated part of said street to said defendant railroad company, and said company took charge of the same and barricaded said vacated street, closing the same and stopping travel thereon, thereby interfering with the access to plaintiff's property, and the comfort and enjoyment of it as a home, rendering it undesirable as a building spot, depreciating its rental worth and greatly diminishing its value. That in vacating said Jackson street same was vacated parallel to and south of said right of way, thereby closing and vacating Washington street just west of and abutting plaintiff's property, so that the entire access to plaintiff's property is cut off from the north and west. That defendant railroad company has taken charge of all of said vacated parts of said streets and alley, and converted same to their own use, and has placed across the intersection of said streets what is commonly called a ‘viaduct,’ being an iron structure about 25 feet in height and crossing the tracks at right angles, over which foot passengers can cross, but effectually and thoroughly closing said street to other travel. That plaintiff's property now has no west or north access thereto by street or alley on account of the streets and alley being closed as above alleged. That all injuries complained of are permanent in their character, and the viaduct will be allowed to remain, and the streets and alley will be kept closed. That plaintiff has expended money and built expensive properties facing said streets, with no knowledge or information that same could or would be closed and a nuisance placed therein, as had been done in this case by defendants.” In an amendment to the petition, it was alleged: “That, by closing said streets and alley abutting on plaintiff's property, defendant city of Osceola greatly and materially interfered with the access to plaintiff's property from and to other parts of the city, and interfered with its free and convenient use and with plaintiff's ingress and egress, and shut off ingress and egress over said vacated parts of said property where it abutted thereon. That, by vacating and closing said streets and alley, and conveying same to said railroad company, defendant city has greatly and materially interfered with the comfort and enjoyment of said property as a home, rendering it undesirable as a building spot, depreciating its rental worth and greatly diminishing its value.”

The demurrer was upon the ground that the law afforded no relief for the proper and regular vacation of streets and alleys by the council of a city. The trial court was of that opinion, and the appeal challenges the ruling on the demurrer. It is conceded that under section 751 of the Code cities and towns have power to narrow or vacate streets, alleys, or public grounds; but it is contended that they may not do so when it interferes with and damages abutting property. It may not be out of place to say that the mere fact that the city conveyed the property to the railway for private or semipublic purposes is immaterial to our present inquiry. Under the rule established by this court, the city council may convey vacated streets and alleys to private individuals. Dempsey v. Burlington, 66 Iowa, 687, ...