Stellingwerf v. Lenihan, 49315
Decision Date | 12 November 1957 |
Docket Number | No. 49315,49315 |
Parties | Edward STELLINGWERF, Appellant, v. D. J. LENIHAN, Stanley Post, and Dr. W. L. Downing, Board of Park Commissioners of the City of Le Mars, Iowa, and Frank Scholer, Sheriff of Plymouth County, Iowa, Appellees. |
Court | Iowa Supreme Court |
Murray & Murray, Sheldon, and E. P. Murray, Le Mars, for appellant.
James P. Kelley, Le. Mars, for appellees.
Plaintiff is the owner of a tract of 14.3 acres in Le Mars. Defendant, Board of Park Commissioners, filed application with defendant sheriff for condemnation of the land. Notice was served on plaintiff as to appraisal of damages, to be made on June 8, 1957. June 7th plaintiff filed this action in equity to enjoin the condemnation proceedings. Plaintiff's petition alleged that while the application for condemnation was for park purposes in accordance with section 370.24, 1954 Code, I.C.A., the truth was that defendants were condemning for the purpose of securing at least five acres out of the tract as an armory site. Plaintiff contends the condemnation was not in good faith, but was a subterfuge to condemn land for other than park purposes. Upon filing petition the trial court granted a temporary injunction ex parte, based on the verified allegations of the petition. The order was conditioned on plaintiff filing bond in the amount of $1,000, which he filed, and temporary injunction was issued. June 14th defendants filed motion to dissolve the temporary injunction, denying plaintiff's right to equitable relief on the issues raised in the petition. Defendants filed answer denying right of plaintiff to test the legality of condemnation proceedings in equity. To this answer plaintiff filed reply, and filed resistance to the motion to dissolve temporary injunction. June 21st the trial court held a hearing on motion to dissolve, at which hearing evidence was presented in support of the allegations of the petition. The trial court dissolved the injunction. New notice of condemnation was served on plaintiff and time for appraisal of damages was fixed for July 6th. June 28th plaintiff filed application in accordance with 58 I.C.A.Rules of Civil Procedure, rule 332 for appeal as to the interlocutory order of the trial court dissolving the temporary injunction. After notice and hearing, order was entered by Justice Oliver of the Supreme Court granting an appeal from the ruling, and staying all proceedings pending determination of the appeal. July 9th plaintiff served notice of appeal.
I. Section 370.24, 1954 Code. I.C.A. provides with reference to condemnation by a park board: 'If said board and the owners of any property desired by it for park purposes cannot agree as to the price to be paid therefor, it may cause the same to be condemned in the manner provided for taking land for municipal purposes.' (Emphasis ours.) As a part of the general powers of a park board section 370.12 provides: 'It may sell, subject to the approval of the city council, exchange, or lease any real estate acquired by it which shall be found unfit or not desirable for park purposes; * * *'. (Emphasis ours.)
Appellant's counsel presented extended argument as to the issue to be decided when the case is tried on its merits. This issue we cannot consider on this appeal. The only question before us is whether appellant offered sufficient evidence to justify temporary injunction until the case is tried and decided on the question of permanent injunction. Doubtless both parties are desirous of offering complete evidence on trial of the case.
A trial court should not grant a temporary injunction against condemnation when alleged unauthorized use of the property involved is based only on rumors or is merely possible or doubtful. Amdor v. Cooney, 241 Iowa 777, 43 N.W.2d 136; Dawson v. Laufersweiler, 241 Iowa 850, 43 N.W.2d 726. This is the claim of appellees as to evidence offered, and is the position taken by the trial court.
If an illegal act is threatened and remedy at law is inadequate, the trial court has authority to grant a temporary injunction to maintain the status quo until the case is tried on its merits. Van Horn v. City of Des Moines, 192 Iowa 1313, 186 N.W. 193; Chicago, R. I. & P. Ry. Co. v. Woods, 196 Iowa 1063, 195 N.W. 957; Wolf v. Lutheran Mut. Life Ins. Co., 236 Iowa 334, 18 N.W.2d 804; Kent Products, Inc. v. Hoegh, 245 Iowa 205, 61 N.W.2d 711. This is the claim of appellant as to the evidence.
In order to decide the question involved we will review material and pertinent testimony. At the hearing appellant presented the testimony of four witnesses: Mayor of Le Mars; two members of Park Board; plaintiff.
Mayor Long testified:
* * *
Park Commissioner Post testified: * * *'
Plaintiff testified: 'At the council meeting the Mayor, Mr. Long, got up and said, 'Well, Mr. Stellingwerf, they have approved your site as an armory',' With reference to a conversation between plaintiff, Mr. Murray, and Mr. Lenihan, one of the Park Commissioners, plaintiff testified: 'Q. What was said then? A. Mr. Lenihan said, Q. Who said that? A. Mr. Lenihan. 'We don't need it for park purposes.''
II. Appellant has no adequate remedy at law. Appellant cannot raise the legal question on appeal in a condemnation action. The only question involved in eminent domain procedure is the value of the property taken. Section 472.25, 1954 Code, I.C.A., provides: ...
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