Welton v. Iowa State Highway Commission

• Decision Date: 12 November 1929
• Docket Number: 39791
• Citation: 227 N.W. 332,208 Iowa 1401
• Parties: RAY M. WELTON, Appellant, v. IOWA STATE HIGHWAY COMMISSION et al., Appellees
• Court: Iowa Supreme Court

227 N.W. 332

208 Iowa 1401

RAY M. WELTON, Appellant, v. IOWA STATE HIGHWAY COMMISSION et al., Appellees

No. 39791

Supreme Court of Iowa, Des Moines

November 12, 1929

Appeal from Mahaska District Court.--J. G. PATTERSON, Judge.

An action in equity to enjoin the chief engineer and the state highway commission from establishing and building a highway through plaintiff's orchard. The relief was denied, and plaintiff appeals.--Dismissed.

Appeal Dismissed.

Thomas J. Bray, for appellant.

John Fletcher, Attorney-general, and Gerald O. Blake, Assistant Attorney-general, for appellees.

WAGNER J. ALBERT, C. J., and STEVENS, MORLING, and GRIMM, JJ concur.

OPINION

WAGNER, J.

The plaintiff, in his petition, alleges that he is the owner of certain land in Mahaska County, upon which an orchard consisting of about twenty apple trees, is located, in close proximity to the buildings and improvements thereon; that the defendants, constituting the membership of the state highway commission and its chief engineer, have taken steps to establish a primary highway through said land and through said orchard, and have instituted a proceeding to condemn the said land for the purpose of using the same in the construction of said primary highway; and that, unless restrained by an injunction, they will establish and construct said highway through plaintiff's orchard and destroy the same; that plaintiff has not consented to the establishment of said highway through his orchard. He prays for a temporary injunction, restraining the defendants from establishing the highway through his orchard, and that, upon final hearing, said injunction be made permanent.

Special appearance was made by the defendants, denying the jurisdiction of the court, for the reason, as claimed, that the Iowa state highway commission and its members are an agency or arm of the state, and that this action is, in effect, one against the state; and further alleging that the petition fails to show fraud, illegality, or derogation of the authority vested in the defendants, and that the proper remedy of the plaintiff is by appeal from the award of damages, or by certiorari, and not by injunction. Said special appearance was sustained, and the cause dismissed at plaintiff's costs, and he appeals.

This is a companion case to Hoover v. Iowa State Highway Com., 207 Iowa 56, 222 N.W. 438. While we deem it immaterial, it perhaps is not amiss to say that, since the time of our pronouncement in the Hoover case, Section 4755-b27 of the Code of 1927, therein discussed, has been amended. See Chapter 21, Acts of the Forty-third General Assembly.

The appellees have filed a motion to dismiss this appeal, or affirm the decision of the district court, for the reasons that the appeal presents only a moot question, which this court will not consider, and that the rights of the parties have been fixed and determined, so that a decision on this appeal will not change the status of the parties, and could not affect the subject-matter of the action. It is substantiated by uncontroverted affidavit that, subsequent to the decision of the district court in this case, and in the absence of an order staying appellees' actions, the road in controversy was established, and the land in question, including the claimed orchard, was taken and used by the appellees for primary road purposes, and that the road has been fully constructed and paved through the premises involved in this action; that the appellant has perfected an appeal to the district court of Mahaska County from the award of the condemnation commissioners as to the amount of his damages by reason of the taking of the identical property involved in this action, which cause was assigned for trial in the district court of Mahaska County, to begin on the very day of the submission of this cause to this court.

It will thus be observed that, during the pendency of the appeal, the plaintiff did not obtain a restraining order from this court as was done in the Hoover case, supra. This court has the power, upon the making of an application, to grant a restraining order, to maintain the status quo of the parties during the pendency of an appeal; and when no other means of protection is afforded by the law, there is no hesitancy in granting the order. See Section 12831 of the...