Strahan v. Town of Malvern

• Decision Date: 15 May 1889
• Citation: 42 N.W. 369,77 Iowa 454
• Parties: STRAHAN v. TOWN OF MALVERN.
• Court: Iowa Supreme Court

77 Iowa 454

42 N.W. 369

STRAHAN

v.TOWN OF MALVERN.

Supreme Court of Iowa.

May 15, 1889.

Appeal from district court, Mills county; A. B. THORNELL, Judge.

Action to recover land sold to the defendant town for an avenue. Judgment for defendant, and plaintiff appeals.E. B. Woodruff, P. P. Kelley, and L. T. Genung, for appellant.

W. S. Lewis and Stone & Gilliland, for appellee.

GRANGER, J.

In 1879 the defendant town adopted an ordinance, and went through the legal forms of establishing within its limits what is known as “Union Avenue,” and plaintiff avers that by an agreement with the defendant he purchased the land on which the avenue is located for the defendant, and for which the defendant was to pay him $3,024, with interest at 10 per cent. until paid. The defendant's claim is that the land was never designed by the town as an avenue, but only as a right of way for a railroad, and for which purpose it was taken and used, and that the town council, in the steps taken by it to establish an avenue, was acting in concert with the plaintiff and others to indirectly secure a right of way for the railroad at the expense of the defendant town; that it was a fraudulent combination between plaintiff and others, with no intention whatever to provide an avenue for public use.

1. The essential fact for the disposition of the case is, did the council of the defendant town agree with the plaintiff to pay for the strip of land for the purpose of an avenue or for the right of way for the railroad? This seems to have been the view substantially taken by the district court, and the question properly for us is were the testimony and instructions legitimate to the inquiry? The railroad company had taken steps to condemn the right of way through the town and over the land in question, and the record of these proceedings was put in evidence, against the objections of the plaintiff, on the grounds that the awards were not paid. As the jury must pass upon the question of the purpose of the proceedings of the council, and the agreement with the plaintiff as to this particular piece of land, and under the allegation that the purpose of all parties was to secure a right of way for the railroad, and not in fact an avenue, it was proper for the jury to be placed as near as the testimony could place it, as the parties were at the time of the transactions to ascertain their purposes; and the fact that the railroad company was at that time endeavoring to get the right of way would be proper for consideration, and also what was done with the knowledge of the parties charged with the collusion. The record does not show, as claimed by appellant, that the jury were left to infer that the right of way was condemned for the railroad company; and it appears that this testimony was admitted only to show that the company was trying to get the right of way, and as one link in a chain of evidence tending to prove that the acts of the council and the plaintiff were to secure it for the company, and in the manner claimed by defendant.

2. Error is assigned as to the testimony of one H. E. Boehner, who was at the time mayor of the town, and who gave testimony as to what occurred at the town council, and, among other questions, was this: “What, if anything, do you know as to what caused the council to pass the ordinance establishing Union avenue?” Against the objection that it was incompetent and immaterial, the witness answered, and the answer discloses that before the passage of the ordinance the company was grading its road on the land in question; that it was talked that the council had not the right to pass the ordinance; that the plaintiff would take and hold the warrants to be issued; and that the legislature could be induced to pass an act authorizing the town to bond its indebtedness; that a bond had been given by plaintiff and others for the right of way for the railroad through the township; that the road was then partially constructed over the land in question; with other facts tending to show the purpose of the ordinance. Under the allegations of a fraudulent conspiracy or arrangement to defraud the tax-payers by a pretense to establish an avenue when the real purpose was to purchase the right of way, this testimony was clearly competent and material. Without such a rule it would be almost impossible to establish the...