Walker v. City of Des Moines

Citation142 N.W. 51,161 Iowa 215
PartiesBUFFON S. WALKER and MARY STEWART, as Trustees of JOSEPH B. STEWART Estate, Appellants, v. CITY OF DES MOINES, JAMES R. HANNA as Mayor, J. I. MYERLY, W. A. NEEDHAM, ZELL G. ROE and FRED T. VAN LIEW, as Councilmen of the City of Des Moines, Polk County, Iowa
Decision Date07 June 1913
CourtUnited States State Supreme Court of Iowa

Appeal from Polk District Court.--HON. 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.


W. S Ayres and Oscar Strauss, for appellants.

Robert O. Brennan, H. W. Byers, and Eskill Carlson, for appellees.



The plaintiffs have title, as trustees, to lot 3 and the south thirty-two and one-half 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 one hundred twelve and one-half 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 eighty feet wide and one hundred and twenty-four feet long on the north side and two 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 twenty years. On October 2 1912, the city council of Des Moines passed an ordinance in words following:

Section 1. That there be and is hereby vacated all of that 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:


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: "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.) section 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 could make use of the same for any legitimate purpose, and the erection of the structure for the storage of vehicles and tools ought not to be declared an improper use, unless shown to constitute a nuisance.

But it is well settled that, though the city has the power to vacate its streets and alleys, this power may not be exercised arbitrarily and in disregard of the trust for the use of the public. This doctrine was recognized in Williams v. Carey, 73 Iowa 194, 34 N.W. 813, and is alluded to in several of the cases above cited.

The rule is well stated in 2 Elliott on Roads and Streets, section 1182: "Whether it is expedient to discontinue a highway is a question for legislative decision, and when the authority to discontinue is delegated to local officers, and no restrictions are placed upon its exercise, the officers are invested with a very broad discretion, and unless this discretion has been abused the courts cannot interfere."

The subject was touched in Spitzer v. Runyan, 113 Iowa 619, 85 N.W. 782, where, in upholding the vacation of a street for depot purposes, the court, speaking through Waterman, J., said: "We must look further, then, for the statutes that govern. Section 751, among other powers given authorizes cities and towns to vacate streets and alleys. It is said by appellants that this power can be exercised only for some public purpose, and that the...

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