Rockwell v. Bowers

Decision Date13 May 1893
Citation55 N.W. 1,88 Iowa 88
CourtIowa Supreme Court


Appeal from district court, Calhoun county; Charles D. Goldsmith, Judge.

Action in equity to restrain the opening of a street within the limits of the incorporated town of Rockwell. There was a hearing on the merits, and a decree in favor of plaintiff. The defendants appeal.Stevenson & Lavender, for appellants.

O. J. Jolley, for appellee.


On the 1st day of October, 1890, the council of the incorporated town of Rockwell adopted a resolution, a copy of which is as follows: “Be it resolved by the town council of the incorporated town of Rockwell, Calhoun county, Iowa: That Custer street, as shown by the recorded plat of J. M. Rockwell's addition to the town of Rockwell, be extended south to the north line of the southeast quarter of section thirty-six, in township eighty-eight north, of range thirty-three west of the 5th P. M., and there terminating, and that the width of said extended street be established at sixty feet, and the committee on streets and alleys be, and they are hereby, instructed, authorized, and empowered to take immediate action to condemn the same, and have the costs thereof assessed as by law provided, and to open the same for public use.” Plaintiff claims to own the land required for the proposed extension. Acting under the resolution, the committee on streets and alleys applied to the district court of Calhoun county for the condemnation of the land, and procured an order directing possession to be taken of it on the payment into court, or to plaintiff, of the amount of damages awarded by reason of such taking. The damages so awarded have been paid to the clerk of the district court, and the council has ordered defendants, the street commissioner and the committee on streets and alleys of the incorporated town of Rockwell, to open the extension provided for in the resolution. The plaintiff claims that the council had no power to order the extension of a street by resolution; that it can make such an order only by ordinance duly passed as provided by law; that the resolution did not give to the district court jurisdiction to act; and that all the proceedings had in that court, including the order made, were void, and of no effect. He asks that defendants be restrained from opening the extension ordered. A temporary injunction was issued in vacation, but was dissolved upon motion and answer. Thereafter the town of Rockwell took actual possession of the land included in the extension. The defendants insist that the council had authority to extend the street by resolution; that its right to do so was adjudicated in the condemnation proceedings; that, by reason of such proceedings, plaintiff is estopped to assert any claim to the premises in controversy; and that he has a plain, speedy, and adequate remedy in the ordinary course of the law. The district court adjudged that plaintiff was entitled to the relief demanded, and directed the defendants to vacate the land appropriated for the extension. The allegation of title to the land in controversy, contained in the petition, is denied by the answer, and is not sustained by the stipulation as to facts; but, as appellants base no claim upon failure of proof as to title, we will not further notice...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT