Stom v. City of Council Bluffs

• Decision Date: 09 September 1971
• Docket Number: No. 54343,54343
• Citation: 189 N.W.2d 522
• Parties: John STOM, Appellee, v. The CITY OF COUNCIL BLUFFS, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 522

189 N.W.2d 522

John STOM, Appellee, v. The CITY OF COUNCIL BLUFFS, Iowa, Appellant.

No. 54343.

Supreme Court of Iowa.

Sept. 9, 1971.

Peters, Walker, Campbell & Pearson, Council Bluffs, for appellant.

Pogge, Root & Steege, Council Bluffs, for appellee.

LeGRAND, Justice.

The ultimate question here is whether a landowner who has building lots fronting on a platted but unopened street is entitled to damages from a municipality which takes away all access to those lots, leaving the landlocked owner without means of ingress or egress.

Defendant's assignments of error raise these issues: (1) The trial court erred in overruling its motion for directed verdict and, later, its motion for judgment notwithstanding the verdict; (2) the trial court erred in refusing to give instructions requested by defendant; (3) the trial court erred in permitting a tardy amendment which materially changed the issues, contrary to rule 88, Rules of Civil Procedure; and (4) the verdict is excessive.

We affirm the trial court on condition that plaintiff remit all of the verdict in excess of $10,000. If he refuses to do so, we grant a new trial.

The factual background important to our decision may be put quite briefly. Plaintiff bought his land in 1945. It comprises nine building lots fronting on a portion of Warren Street, a public street in Council Bluffs, which was dedicated and accepted by the city but which has never been opened or improved. At the same time, plaintiff purchased his homestead located south of these lots. Access to this property is not involved, but we point out there is no way to get from his home to the nine lots because of the contour of the land. The two parcels are separated by an impassable gully or ditch, and the fact that plaintiff owns land which is contiguous to the lots is unimportant since it affords him no access.

Prior to the street improvement which led to this litigation plaintiff had access to his lots by a circuitous route of approximately five blocks over public streets--some improved, some not.

He proceeded east one-and-a-half blocks on Mt. Vernon Street, a partly unimproved public street; then north one block on Marshall Street; then west two blocks on Warren Street, also an improved public street.

This controversy involves the improvement of one block of Warren Street between Marshall Street and Harrison Street. Prior to that improvement plaintiff could reach his nine lots by the route already described. The terrain was rough, uneven and had a grade of approximately 30 percent. For many years plaintiff used this street in getting to his lots but could do so only by the use of a horse team or a tractor. Automobiles could not use it except 'under ideal conditions.' Plaintiff used his lots for a truck garden and sold the produce raised although his income from this source was small. The parties agreed that the street was a public street properly dedicated and accepted by the city but that it had never been improved.

In 1962 the city undertook a program to improve Warren Street from Marshall to Harrison, stopping just short of plaintiff's lots. Warren Street from Marshall to Harrison was brought to the pre-established grade set by ordinance in 1959 and was paved with concrete surface. It is conceded the work was done in conformance with the grade established by the ordinance.

In order to bring the street to the established grade, the city cut down the portion of Warren Street being improved and left an embankment of almost 20 feet at the point where that street intersects with Harrison. The effect of this was to leave plaintiff with no access to his nine lots from any source.

Perhaps this is best shown by this picture:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The houses shown in this photograph have no significance.

The exhibit graphically illustrates what plaintiffs' witnesses orally related--that after the improvement of the street, plaintiff was unable to reach his land by either Warren Street (the paved street in the picture) or by Harrison Street, an unimproved public street running along the base of the embankment.

I. We must first decide an important issue upon which the whole case depends and one upon which the parties, even now, are unable to agree. It concerns the theory of plaintiff's case.

Defendant insists, as it did in the trial court, that plaintiff has no right of action except under section 389.22. The Code, which we set out in full:

'When any city or town shall have established the grade of any street or alley, and any person shall have made improvements on the same, or lots abutting thereon, according to the established grade thereof, and such grade shall thereafter be altered in such a manner as to damage, injure, or diminish the value of such property so improved, said city or town shall pay to the owner of such property the amount of such damage or injury.'

Defendant places great reliance upon our recent decision in Tott v. Sioux City, 261 Iowa 677, 155 N.W.2d 502 (1968). Plaintiff, on the other hand, has from the start disavowed any intention of seeking recovery under this statute, basing his suit instead upon his constitutional right to 'just compensation' for loss of access to his property. (Article I, section 18, Constitution of Iowa.) His principal authorities are Liddick v. City of Council Bluffs, 232 Iowa 197, 5 N.W.2d 361 (1942) and Anderlik v. Iowa State Highway Commission, 240 Iowa 919, 38 N.W.2d 605 (1949).

This running controversy between the litigants--in the pleadings, during trial, and now on appeal--points up similar disagreements among courts. Decisions vary from state to state, depending on whether the deprivation of access is considered a 'taking' of property for which the owner is constitutionally entitled to compensation.

In our discussion we assume, therefore, plaintiff cannot prevail unless Iowa regards loss of, or unreasonable interference with, access by governmental action as a 'taking' of property in the constitutional context.

Although the authorities are split on the issue (Anderlik v. Iowa State Highway Commission, supra, 240 Iowa at page 923, 38 N.W.2d at page 608), we have long adhered to the rule that the right of access may not be taken away or unreasonably interfered with unless just compensation is paid under Article I, section 18 of our constitution. Long v. Wilson, 119 Iowa 267, 268, 93 N.W. 282, 283 (1903); Borghart v. Cedar Rapids, 126 Iowa 313, 316, 101 N.W. 1120, 1121 (1905); Ridgway v. City of Osceola, 139 Iowa 590, 594, 117 N.W. 974, 975 (1908); Hubbell v. City of Des Moines, 173 Iowa 55, 63, 154 N.W. 337, 340 (1915); Nalon v. City of Sioux City, 216 Iowa 1041, 1044, 250 N.W. 166, 167 (1933); Liddick v. City of Council Bluffs, 232 Iowa 197, 232, 5 N.W.2d 361, 379 (1942); Anderlik v. Iowa State Highway Commission, 240 Iowa 919, 923, 38 N.W.2d 605, 608 (1949); Gates v. City of Bloomfield, 243 Iowa 671, 675, 53 N.W.2d 279, 281 (1952); Hathaway v. Sioux City, 244 Iowa 508, 513, 57 N.W.2d 228, 231 (1953); Iowa State Highway Commission v. Smith, 248 Iowa 869, 874, 82 N.W.2d 755, 758 (1957). See also 2 Nichols on Eminent Domain, Third Ed., section 6.32, pages 6--79.

It is clearly the holding in Liddick and Anderlik that plaintiff is not limited to the statutory remedy provided in chapter 389, as defendant claims, but may be entitled to compensation for a 'taking' of his right of access under Article I, section 18 of the constitution upon a showing that such access has been destroyed or unreasonably interfered with.

Incidentally the authorities make no distinction between vacating a street, obstructing it, or other conduct impairing the landowner's right of reasonable access to his property.

Liddick v. City of Council Bluffs, supra, contains an exhaustive analysis and discussion of our prior cases. Much of what is said there is applicable here, but we limit ourselves to a few brief quotations from that case to illustrate what we deem to be the controlling considerations. At page 223 of 232 Iowa, page 375 of 5 N.W.2d, we said:

'Thus, again, (in Long v. Wilson, 119 Iowa 267, 268, 93 N.W.2d 282, 283) did this court approve the principle that an abutter's easement, or right of access, is a right of property, protected by the constitution, which cannot be taken from the owner without compensation.' And to remove any possible uncertainty about our law, we flatly held as follows, 'We now hold that the destruction of the rights of access, light, air, or view, or the substantial impairment or interference with these rights of an abutting property owner in the highways or streets adjacent to his property * * * is a 'taking' of the private property of said owner within the purview and provisions of Section 18, Article I, of the Iowa Constitution.' (232 Iowa at page 232, 5 N.W.2d at page 379.)

While the Liddick case was brought under the predecessor to our present chapter 389, the right to compensation was not restricted to the remedy granted by that chapter. We settled this in the later case of Anderlik v. Iowa State Highway Commission, supra, 240 Iowa at 923, 38 N.W.2d at 607, 608, where we reaffirmed what was said in Liddick and added this:

'It is also true * * * the Liddick opinion holds the property owners there were entitled to damages from the city under what is now section 389.22, Code, 1946 * * * because of change of an established grade of the street and that this statute has no application outside cities and towns. * * * But subsequent divisions of the Liddick opinion consider the very question here involved irrespective of the right to damages under section 389.22 and reached the conclusion above quoted. * * *

'The basis of the Liddick decision is that real property consists not alone of the tangible thing but also of certain rights therein sanctioned by law, such as rights to access (ingress and egress), light, air and view, and when such rights are destroyed or substantially...