Tott v. Sioux City

• Citation: 261 Iowa 677,155 N.W.2d 502
• Decision Date: 09 January 1968
• Docket Number: No. 52731,52731
• Parties: Julia M. TOTT, Appellee, v. SIOUX CITY, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 502

155 N.W.2d 502

261 Iowa 677

Julia M. TOTT, Appellee, v. SIOUX CITY, Iowa, Appellant.

No. 52731.

Supreme Court of Iowa.

Jan 9, 1968.

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

William A. Shuminsky, Sioux City, for appellee.

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, 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:

'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 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 street be opened as it does in exercising any of the other enumerated powers.

This conclusion is in accord with the overwhelming weight of authority. McQuillin, Municipal Corporations, 3rd Ed.Vol. 10, § 30.31; 63 C.J.S. Municipal Corporations § 1043, p. 638; DeVille v. City of Oakdale, La.App., 180 So.2d 556; People ex rel. Lyddy v. City of Rock Island, 45 Ill.App.2d 76, 194 N.E.2d 647; Aro Investment Co. v. City of Omaha, 179 Neb. 569, 139 N.W.2d 349, 352; State ex rel. Townsend v. Board of Park Commissioners, 100 Minn. 150, 110 N.W. 1121, 9 L.R.A.,N.S., 1045; City of Norton v. Lowden, 10 Cir., 84 F.2d 663; Hoglund v. City of Summit, 28 N.J. 540, 147 A.2d 521, 528; Appeal of Bender, 106 Pa.Super. 376, 163 A. 47, 49; Town of Chouteau v. Blankenship, 194 Okl. 401, 152 P.2d 379, 394, 171 A.L.R. 87; Parker v. City of Philadelphia, 391 Pa. 242, 137 A.2d 343, 349; Town of Perry v. Thomas, 82 Utah 159, 22 P.2d 343, 345; City of Jefferson v. Eiffler, 16 Wis.2d 123, 113 N.W.2d 834.

II. Plaintiff argues 'the transaction, whereby a private owner of land plats the same and dedicates a part thereof to the public for use as a street or other public purpose, is in the nature of a contract, is binding upon both parties and confers rights and creates obligations', including the burden of opening and improving the streets within a reasonable time. She relies on Warren v. The Mayor of Lyons City, 22...