Ulbrecht v. City of Keokuk

• Decision Date: 16 January 1904
• Citation: 97 N.W. 1082,124 Iowa 1
• Parties: AUGUST ULBRECHT, Appellant, v. THE CITY OF KEOKUK, Appellee
• Court: Iowa Supreme Court

97 N.W. 1082

124 Iowa 1

AUGUST ULBRECHT, Appellant, v. THE CITY OF KEOKUK, Appellee

Supreme Court of Iowa, Des Moines

January 16, 1904

Appeal from Superior Court of Keokuk.-- HON. FELIX T. HUGHES, Judge.

ACTION at law in which plaintiff seeks to recover the value of certain trees growing in the street parking in front of and at the side of his homestead property in the city of Keokuk and which were cut down by order of said city; also to recover damages to his said property caused by the cutting of such trees, and by cutting down the street surface in front thereof below the level of the established grade. A demurrer to the petition was sustained. Plaintiff refused to plead over, and there was judgment against him for costs. From such judgment he appeals.

Affirmed.

J. F Smith, for appellant.

Hazen I. Sawyer, for appellee.

OPINION

BISHOP, J.--

In his petition as originally filed on September 16, 1901, plaintiff claimed damages in the value of the trees cut down, and damages to his lot occasioned by the cutting down of such trees. In said pleading, plaintiff alleged that a verified notice of his claim for damages was served on the defendant city on June 15, 1901, and a copy of such notice is attached. In its material parts necessary to be considered, the notice is to the effect that the cutting of the trees took place on or about May 28, 1901; that defendant also cut down the earth alongside of plaintiff's property, destroying the sidewalk and changing the grade of the street; that the value of the trees was $ 750, and the damage to the lot was $ 50. On November 21, 1901, plaintiff filed what is denominated a supplemental petition, in which he says that by reason of the cutting of the street down below the established grade his lot is left in a condition to be gullied, and for this he asks additional damages in the sum of $ 100. And on January 30, 1902, plaintiff filed an amendment to his petition, which is not altogether understandable. Therein he says that the work by the city was commenced about May 28, 1901, and continued with intermissions until June 15, 1901; that "the damages set out in his petition was done as one job, but was left at different times, and same was not finished until the work was done, after the filing of the petition in this action; that plaintiff cannot give the days on which the different parts of the work was done." Therein he also alleges that the injury set out in his "amended petition" was done "after the petition in this case was filed, and before the filing of said supplementary petition, and was a continuation of the work originally done before suit."

It is conceded that the defendant is a special-charter city, and the demurrer is grounded upon the statute of limitations having relation to such cities. Section 1051 of the Code (being part...