Walker v. City of Des Moines

• Court: United States State Supreme Court of Iowa
• Writing for the Court: LADD
• Citation: 161 Iowa 215,142 N.W. 51
• Decision Date: 07 June 1913
• Parties: WALKER ET AL. v. CITY OF DES MOINES ET AL.

161 Iowa 215
142 N.W. 51

WALKER ET AL.
v.
CITY OF DES MOINES ET AL.^d1

Supreme Court of Iowa.

June 7, 1913.

Appeal from District Court, Polk County; Charles S. Bradshaw, Judge.

Suit to set aside an ordinance vacating a street, and to enjoin its use for the storage of city machinery, resulted in a decree dismissing plaintiffs' petition. The plaintiffs appeal. Affirmed.

[142 N.W. 51]

W. S. Ayres and Oscar Strauss, both of Des Moines, for appellants.

Robert O. Brennan, H. W. Byers, and Eskill Carlson, all of Des Moines, for appellees.

LADD, J.

The plaintiffs have title, as trustees, to lot 3 and the south 32 1/2 feet of lot 2, in block 1, East Des Moines, now within the limits of the city of Des Moines, but several blocks from the business portion of the city. These lots are about 112 1/2 feet on First street, running north and south, and lot 3 lies along Des Moines street on the south, which commences at a narrow strip of land along the east side of the Des Moines river, known as “Water Power Place,” and runs to the east. “Water Power Place” also forms the west boundary of the lots. That part of Des Moines street west of First street is a cul de sac, and is 80 feet wide and 124 feet long on the north side and 2 feet more on the south side. It is neither curbed nor paved. There are four small dwellings on the lots, but none facing Des Moines street, and there is no alley along the north line of the lots. The streets were dedicated by the owners of the land in platting it into lots and blocks in 1854, and afterwards confirmed by them in 1859, and have been traveled for more than 20 years. On October 2,

[142 N.W. 52]

1912, the city council of Des Moines passed an ordinance in words following:

“Section 1. That there be and is hereby vacated all of the part of Des Moines street in the city of Des Moines bounded as follows: Beginning on the west line of East First street at a point sixteen (16) feet south of the northwest corner of East First street and Des Moines street; thence west on a line parallel with the north line of Des Moines street one hundred (100) feet; thence south thirty-one (31) feet; thence east one hundred (100) feet to the west line of East First street; thence north forty-one (41) feet to the point of beginning.

Sec. 2. That portion of Des Moines street by section 1 hereof vacated be and the same is hereby dedicated to the use of the city of Des Moines for the use and occupancy of a public yard.”

Prior to this the city council had resolved: “That the Sup. of the Dept. of streets and public improvements is hereby authorized to construct a suitable storage and warehouse building on Des Moines street between East First street and the Des Moines river, the cost of the same not to exceed $1,000.00.” And, notwithstanding plaintiff's protest, the department of public streets and improvements proceeded with the construction of a building with north wall nine feet high and the south wall 12 feet, with gravel roof, to be used in storing wagons, carts, flushers, and other tools of the department. The plat indicates the situation:

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[1][2] Without questioning the power of the city to vacate streets and alleys, the appellants contend that this may not be done by the city in order to devote the same to its private use. The fee to all streets and alleys is in the city, and, as contended by appellants, title thereto is held by it in trust for the general public. This was laid down on great consideration in Clinton v. Railway, 24 Iowa, 455. But the Legislature has authorized the city council, by ordinance, to withdraw a street or alley from such public use by vacating it. See section 751, Code. And after vacating the same the city, through its council, may dispose of the ground so vacated “in such manner and upon such terms as the council shall direct.” Section 883, Code. When continued as a street, the city could not divert it to other uses (Pettit v. Grand Junction, 119 Iowa, 352, 93 N. W. 381); but having effected its vacation the title, freed from the trust, continues in the city, and it may convey the ground vacated to another, to be used for private purposes. Marshalltown v. Forney, 61 Iowa, 578, 16 N. W. 740;Dempsey v. Burlington, 66 Iowa, 687, 24 N. W. 508;Harrington v. Railway, 126 Iowa, 388, 102 N. W. 139;Spitzer v. Runyan, 113 Iowa, 619, 85 N. W. 782. See Chrisman v. Brandes, 137 Iowa, 433, 112 N. W. 833. As said in Tomlin v. Railway Co., 141 Iowa, 599, 120 N. W. 93, 22 L. R. A. (N. S.) 530: “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, 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.” If, then, the city became the owner of the vacated ground, it...