Tillotson v. Windsor Heights

• Decision Date: 17 December 1957
• Docket Number: No. 49260,49260
• Citation: 249 Iowa 684,87 N.W.2d 21
• Parties: Paul E. TILLOTSON, and Nina Blume Tillotson, Appellees, v. WINDSOR HEIGHTS, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 21

87 N.W.2d 21

249 Iowa 684

Paul E. TILLOTSON, and Nina Blume Tillotson, Appellees, v. WINDSOR HEIGHTS, Iowa, Appellant.

No. 49260.

Supreme Court of Iowa.

Dec. 17, 1957.

Warren C. Fletcher, Des Moines, and John Fletcher, Mapleton, for appellants.

Gibson, Stewart & Garrett, and Harry Watts, Des Moines, for appellees.

SMITH, Justice.

Defendant assures us the facts are not in dispute. Apparently the same is not true of the applicable law, though the same authority (defendant) after referring us (by erroneous citations) to four decisions, lays the matter in our collective lap with the comforting assertion: 'There could be a long array of cases cited here in support of our contention, but since we find no authorities to the contrary since (code) section 389.22 was placed in its present form we do not believe further argument to be necessary.'

Unfortunately we are not advised when or how the cited code section was in any materially different form from its present, or for that matter how it ever, from its appearance in the Code of 1873, was applicable to a case in which the city (or town) had never established a grade for the street in question.

It provides, and so far as we can determine, always substantially provided: '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.' Clearly it is not pertinent or involved here.

Plaintiffs' premises in defendant municipality border on 64th street upon which no grade had ever been established as authorized by section 389.20, Iowa Code 1954, I.C.A. An examination of that code section and its statutory ancestors, section 782, Code of 1897, and section 465, Code of 1873, reveals a rather striking continuity or persistence of characteristics.

It provides simply that municipalities 'shall have power to establish grades and provide for the grading of any street * * * the expense thereof to be paid from the general or grading fund, or from the highway or poll taxes * * * or partly from each * * *.'

In August, 1954, defendant lowered 64th street alongside plaintiffs' premises approximately three feet, thereby rendering useless their driveway by which they had access to the street. There is no contention the work was done carelessly. The damage was the natural result of the carrying out of the project. But there was no preceding exercise of the delegated legislative power of establishing a grade.

Plaintiffs brought this action to recover for the obviously resulting damage and depreciation in value of their property. Defendant, by motion to dismiss (first sustained but on second thought denied) questioned plaintiffs' right to recover upon the stated facts we have sketched.

After answer and upon motion for adjudication of law points (58 I.C.A. rule 105, R.C.P.) the trial court ruled: 1. The change of street level, without prior establishment of a grade gives right of action for resulting damage: 2. A cause of action arises when the city (or town) changes the street level in such manner as to block lot owner's ingress and egress to and from his premises; 3. The right of such ingress and egress is a private property right; and 4. The interference therewith gives a right to recover resulting damage.

The case was tried to the court under this ruling as the law of the case and defendant now appeals from the resulting judgment.

I. The sovereign power to establish and have dominion over street, etc., within the municipality's corporate limits is of course delegated by the Code, sections 389.1 and 389.20, I.C.A.

The delegation clothes the city (or town) with sovereign immunity from liability if the power to change the physical level be preceded by a proper legislative determination by ordinance establishing the intended grade. If not so preceded the city is without authority and liable for resulting interference with the lot owner's special interest in the street. Blanden v. City of Ft. Dodge, 102 Iowa 441, 444, 71 N.W. 411.

The 'establishment' of a grade means the adoption of a standard level of a street and is not to be confused with the physical process or act of placing the street at the level established. It is legislative in character and must be accomplished by ordinance. Kemp v. City of Des Moines, 125 Iowa 640, 644, 101 N.W. 474; Kepple v. City of Keokuk, 61 Iowa 653, 656, 17 N.W. 140.

'The city must exercise its power in the manner prescribed by the statutes, and when a street is cut down without so doing' (i. e., without prior establishment of grade) 'it is liable for the injury, if any, resulting to the abutting property owners.' Blandon v. City of Ft. Dodge, supra [102 Iowa 441, 71 N.W. 412], citing Trustees of Diocese of Iowa v. City of Anamosa, 76 Iowa 538, 41 N.W. 313, 2 L.R.A. 606. See also: Wilbur v. City of Ft. Dodge, 120 Iowa 555, 95 N.W. 186; Brown v. City of Sigourney, 164 Iowa 184, 145 N.W. 478; Millard v. City of Webster City, 113 Iowa 220, 84 N.W. 1044.

'It is well settled * * * that the city is liable for any damages * * * to an abutting property owner by cutting down the street in front of his premises except for...