Rockwell v. Bowers

• Decision Date: 13 May 1893
• Citation: 55 N.W. 1,88 Iowa 88
• Parties: JOHN M. ROCKWELL, Appellee, v. E. M. BOWERS, STREET COMMISSIONER et al., Appellants
• Court: Iowa Supreme Court

55 N.W. 1

88 Iowa 88

JOHN M. ROCKWELL, Appellee, v. E. M. BOWERS, STREET COMMISSIONER et al., Appellants

Supreme Court of Iowa, Des Moines

May 13, 1893

Appeal from Calhoun District Court.--HON. 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 the plaintiff. The defendants appeal.

Reversed.

Stevenson & Lavender, for appellants.

O. J Jolley, for appellee.

OPINION

ROBINSON, C. J.

On the first 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 36, in township 88 north, of range 33 west of the fifth 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."

The 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 the 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 the 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 the 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, the 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 the 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 the appellants base no claim upon failure of proof as to title, we will not further notice it.

Whether the council of an incorporated town has power to extend and open a street, and provide for the condemnation of land required for that purpose, by resolution, or whether an ordinance is necessary for that purpose, we do not find it necessary to determine. It is a well established rule of law that courts...