Tott v. Sioux City, 52731

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSTUART
Citation261 Iowa 677,155 N.W.2d 502
PartiesJulia M. TOTT, Appellee, v. SIOUX CITY, Iowa, Appellant.
Docket NumberNo. 52731,52731
Decision Date09 January 1968

Page 502

155 N.W.2d 502
261 Iowa 677
Julia M. TOTT, Appellee,
SIOUX CITY, Iowa, Appellant.
No. 52731.
Supreme Court of Iowa.
Jan 9, 1968.

[261 Iowa 678]

Page 503

Ernest Turek and Donald W. Sylvester, Sioux City, for appellant.

William A. Shuminsky, Sioux City, for appellee.

Page 504

STUART, Justice.

Plaintiff, Julia M. Tott, brought this action in equity to compel the City of Sioux City to open and improve a dedicated street abutting plaintiff's lots which had been accepted by the city. The question on appeal is whether mandamus will lie to compel a city council to open such street. The district court imposed a mandatory duty upon the defendant city to open, improve, grade, and make a roadway of an established public street. A writ of mandamus was issued commanding the city to perform this 'ministerial' duty. The city has appealed.

Schulein and Peters' Morningside Addition to Sioux City, was surveyed and platted into lots, blocks, streets, and alleys, was dedicated to the public and accepted for public use by the defendant city. Said plat was filed for record in the office of the Recorder of Woodbury County, on June 13, 1887. The plat included a public street identified as Mulberry Avenue, but which was changed by ordinance on March 23, 1911, to 'South Mulberry Street'. Plaintiff has owned lots 11--16, block 13, [261 Iowa 679] in said addition since November 20, 1957. South Mulberry Street runs in a north-south direction and abuts the west side of plaintiff's lots.

Plaintiff's lots are bounded on the north by a railroad right of way which constitutes an impassable barrier, on the south by defendant's property known as Lot 10, Block 13, of Schulein and Peters' Morningside Addition and on the east by other property owned by defendant.

A concrete street, East Gordon Drive, is just south of lot 10, block 13. It extends generally northwest and southeast and is a main thoroughfare in Sioux City. South of East Gordon Drive, Mulberry Street is a paved street 66 feet wide which has been used for many years by the public as a public highway for vehicular and pedestrian use. The portion of Mulberry Street involved herein, which is approximately 250 feet long, north of East Gordon Drive has never been opened, graded, improved or used by the public as a street. Plaintiff and her predecessors in title have on numerous occasions appeared before the city council and demanded that defendant open, grade, and improve this portion of South Mulberry Street. The city council on all occasions has refused to do so.

Plaintiff claims she would like to improve said premises by building thereon but cannot do so until the defendant city provides access to the lots as there is no other means of ingress or egress to her property. The topography of South Mulberry Street north of East Gordon Drive is such that it cannot be used for travel by either vehicles or pedestrians without being graded and improved.

I. Does a city have a mandatory duty to open and improve a street, dedicated and accepted as a public street, when requested to do so by the owner of lots abutting such unopened street if the owner has no other access to his lots? We hold the city has a discretionary power in the matter rather than a mandatory duty to do so.

The state, having full authority and power over public highways can delegate control of those within a municipality to the municipal authorities. Central Life Assurance Society v. City of Des Moines, 185 Iowa 573, 578, 171 N.W. 31. It has done so by section 389.1, Code of Iowa, which provides:

[261 Iowa 680] 'Cities and towns shall have power to establish, lay off, open, widen, straighten, narrow, vacate, extend, improve, and repair streets, highways, avenues, alleys * * * within their limits.'

Although we have found no Iowa cases in which the power to open a street has been directly involved, other powers conferred by this section have been considered.

'The powers thus conferred are legislative in character, and within the limits prescribed

Page 505

by statute are plenary. The only limit upon them which the courts have been inclined to recognize is that they shall not be exercised unreasonably.' Lacy v. City of Oskaloosa, 143 Iowa 704, 708, 121 N.W. 542, 544, 31 L.R.A.,N.S., 853.

Under section 389.1, 'a wide discretion is vested in cities and towns in the opening, control and vacation of streets and alleys. While the exercise of this power is not unlimited, yet where it is exercised in good faith, and for what it believes to be the public good, the courts will not interfere in the action of the municipality. Such interference is justified only in a clear case of arbitrary and unjust exercise of the power. (Citing cases)'. Stoessel v. City of Ottumwa, 227 Iowa 1021, 1022--1023, 289 N.W. 718, 719; Des Moines City Ry. v. City of Des Moines, 205 Iowa 495, 503, 216 N.W. 284; Morrison v. Hershire, 32 Iowa 271, 276.

The listed powers are separate and distinct. The invoking of any one power does not make it mandatory for the city to exercise one or more of the others. A city may 'establish' or 'lay off' streets or accept a dedication of streets to the public without being required to open them to the public upon request. Cities must be able to intelligently plan their streets for future needs. Plats may be necessary long before public need demands the opening of a street. 'We have said repeatedly that many streets in new plats were dedicated with no serious thought of their immediate improvement or extensive use, but largely to accommodate future needs. (Citing cases)' Kelroy v. City of Clear Lake, 232 Iowa 161, 5 N.W.2d 12, 19. The city council has just as much discretion in determining whether public necessity requires that a...

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7 cases
  • Stom v. City of Council Bluffs, 54343
    • United States
    • United States State Supreme Court of Iowa
    • September 9, 1971
    ...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......
  • Hill v. City of Lawrence, 49084
    • United States
    • Court of Appeals of Kansas
    • July 28, 1978
    ...123, 113 N.W.2d 834, 839 (1962); Aro Investment Company v. City of Omaha, 179 Neb. 569, 139 N.W.2d 349, 352 (1966); Tott v. Sioux City, 155 N.W.2d 502 (Iowa 1968), and 39 Am.Jur.2d, Highways, Streets, and Bridges, § 66, p. In this case the trial court concurred in the city's finding that th......
  • Oakes Const. Co. v. City of Iowa City, 64373
    • United States
    • United States State Supreme Court of Iowa
    • April 15, 1981
    ...Municipal Corporations §§ 1042, 1043 (1950). This principle is followed in Iowa. The court quoted Iowa decisions in Tott v. Sioux City, 261 Iowa 677, 680, 155 N.W.2d 502, 504-05 "The powers thus conferred are legislative in character, and within the limits prescribed by statute are plenary.......
  • First Nat. Bank of Chicago Heights v. City of Chicago Heights, s. 77-835
    • United States
    • United States Appellate Court of Illinois
    • August 16, 1978
    ...use. (See Wisconsin Townhouse Builders, Inc. v. City of Madison (1967), 37 Wis.2d 44, 154 N.W.2d 232; Tott v. City of Sioux City (1968), 261 Iowa 677, 155 N.W.2d 502; Lafayette Land Co. v. Village of Tonka Bay (1975), 305 Minn. 461, 234 N.W.2d 804.) The decision to open a street is a discre......
  • Request a trial to view additional results

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