Tomlin v. Cedar Rapids & Iowa City Ry. & Light Co.

• Decision Date: 13 March 1909
• Citation: 120 N.W. 93,141 Iowa 599
• Parties: TOMLIN v. CEDAR RAPIDS & IOWA CITY RY. & LIGHT CO.
• Court: Iowa Supreme Court

141 Iowa 599

120 N.W. 93

TOMLIN

v.CEDAR RAPIDS & IOWA CITY RY. & LIGHT CO.

Supreme Court of Iowa.

March 13, 1909.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

The opinion states the case. Affirmed.

Evans, C. J., and Weaver, J., dissenting.

O. A. Byington, for appellant.

John A. Reed, for appellee.

SHERWIN, J.

The plaintiff stated in her petition that she was the owner of lots 7 and 8, in block 95, Iowa City, Iowa, and that said property abuts the east side of Front street, in said city, between College and Burlington streets; that in July, 1904, the defendant constructed upon said street in front of her property an electric interurban railway, which has since said time been in operation for the transportation of both passengers and freight; that she had suffered damages on account thereof which had not been paid. The defendant answered, admitting the construction and operation of the railway upon what was formerly the west one-half of said Front street. It pleaded, however, that the west one-half of said Front street between College and Burlington streets was vacated by an ordinance of the city and became the property of the state of Iowa for the use and benefit of the state university, and that the part of said street so vacated no longer constituted a public highway. The plaintiff demurred to the answer on the ground that the ordinance pleaded was void because it “contained more than one subject,” and for the further reason that the ordinance does not grant the right to the defendant to use said street without paying damages to abutting property owners. The demurrer was overruled, and the plaintiff appealed.

The ordinance provided for the vacation of the west one-half of Front street for a specified distance, and then granted to the defendant the right to use the part so vacated for the purpose of constructing, maintaining, and operating its railway. It further provided “that the said west one-half of Front street so vacated be and the same is hereby granted to the state of Iowa for the use of the State University of Iowa subject to the right of way herein granted to the Cedar Rapids and Iowa City Railway and Light Company, its successors and assigns.” The ordinance vacated a part of the street, gave the defendant the right to use the part so vacated for right of way, and granted its use, subject to such right of way, to the state. The real subject of the ordinance and the only purpose for which it was passed was to grant an easement in the land to the defendant and a fee therein to the university. It related solely to the transfer of its estate in the street, although to different parties. An ordinance vacating a street and at the same time conveying it where the diversion is the real purpose thereof does not contain two subjects. City of Marshalltown v. Forney, 61 Iowa, 578, 16 N. W. 740;Spitzer v. Runyan, 113 Iowa, 619, 85 N. W. 782;Dempsey v. Burlington, 66 Iowa, 687, 24 N. W. 508;Hanson v. Hunter, 86 Iowa, 722, 48 N. W. 1005, 53 N. W. 84. That a city may vacate streets and alleys and divert them to other uses has long been the rule in this state. Harrington v. Railway Company, 126 Iowa, 388, 102 N. W. 139; Marshalltown v. Forney, supra; Lake City v. Fulkerson, 122 Iowa, 569, 98 N. W. 376, and other cases. And, when a street is properly vacated, it ceases to be a street. The right of the public therein is divested, and for all of the essentials of this case it becomes private property. A state or municipality may hold property for uses distinct and independent of public uses, and, when property is so held, it becomes in effect private property. Elliott on Roads and Streets (2d Ed.) § 136. And, when a street ceases to be public by reason of its vacation, it is private property within the meaning of the law, and a road located thereon does not entitle an abutting owner to damages. Rinard v. Burlington & N. R. Co., 66 Iowa, 440, 23 N. W. 914; Harrington v. Railway Co., supra. The ordinance in question conveyed to the defendant a right of way, and under the easement thus granted it had the right to construct and operate its road without the franchise necessary in case of the use of streets, etc. Winklemans v. Railway Co., 62 Iowa, 11, 17 N. W. 82.

The demurrer to the answer was properly overruled, and the judgment must be affirmed.

Affirmed.

WEAVER, J. (dissenting).

I cannot agree to any further extension of the doctrine approved in the case of Marshalltown v. Forney, above cited--a decision which I regard unsound in principle and out of harmony with a great majority of the established...