Stubenraugh v. Nerfenesch

• Court: United States State Supreme Court of Iowa
• Writing for the Court: SEEVERS
• Citation: 7 N.W. 1,54 Iowa 567
• Parties: STUBENRAUGH AND OTHERS v. NERFENESCH AND OTHERS.
• Decision Date: 19 October 1880

54 Iowa 567
7 N.W. 1

STUBENRAUGH AND OTHERS
v.
NERFENESCH AND OTHERS.

Supreme Court of Iowa.

Filed October 19, 1880.

Appeal from Marion circuit court.

Action in equity. Petition dismissed on the merits, and the plaintiffs appeal.

[7 N.W. 1]

H. G. Curtis, for appellants.

Bousquet & Ryan, for appellees.

SEEVERS, J.

The petition states the plaintiffs are lot owners in the city of Pella, adjacent to a certain portion of the territory of said city, which had also been laid out into lots, streets and alleys; that the city council of said city had, under and by virtue of a resolution passed by it, vacated the streets and alleys in the last-mentioned territory, and proposed to pass a certain ordinance to more effectually accomplish the same purpose; that the same is being done for “private ends and uses, and against the public benefit, * * * and to the disadvantage of the plaintiffs and the public generally, and in utter disregard of plaintiffs' rights and interests, * * * to the irreparable injury of the plaintiffs.” The relief asked was that the mayor and city council, who are made defendants, be enjoined from passing said ordinance, * * * and that “all resolutions, papers, and agreements tending toward the vacation of streets and alleys that may have been passed by said city council be * * * set aside and held for naught.” An injunction was asked and granted, restraining the passage of said ordinance, which on motion was dissolved, and thereafter there was a trial and the action dismissed. Counsel for the appellants state the question to be determined to be that the city has “no power to vacate or divert streets and alleys from their use as such, and any act to that end is ultra vires, and interferes with vested rights.”

This identical question was before this court in Gray v. The Iowa Land Co. 26 Iowa, 388. It was there said, by Wright, J.: “If the city authorities had the power to order the vacation, plaintiff's case is at an end, for the objection made goes, as we understand, to the want of power, and not to the manner of its exercise;” and it was held that under the then existing statutes the power did exist, and therefore a demurrer to the petition was properly sustained. The case of Warren v. The Mayor, 22 Iowa, 35I, was referred to and distinguished.

The city was laid out in 1848, and was incorporated by special charter in 1855. In 1870 such charter was abandoned, and the city became duly incorporated under the general incorporation law, which constitutes its present charter, and it is therein provided, cities “have power to lay off, widen, straighten, narrow, vacate, extend, establish, and light streets, alleys, and public grounds.” Code, § 464. Here is found an express grant of the requisite power, and there, it...