Western Newspaper Union v. City of Des Moines

• Decision Date: 20 March 1913
• Citation: 140 N.W. 367,157 Iowa 685
• Parties: WESTERN NEWSPAPER UNION, Appellant, v. CITY OF DES MOINES, A. J. MATHIAS, Mayor, BEN J. NESS, Sheriff of Polk County, Appellees
• Court: Iowa Supreme Court

140 N.W. 367

157 Iowa 685

WESTERN NEWSPAPER UNION, Appellant, v. CITY OF DES MOINES, A. J. MATHIAS, Mayor, BEN J. NESS, Sheriff of Polk County, Appellees

Supreme Court of Iowa, Des Moines

March 20, 1913

Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.

THE City of Des Moines instituted condemnation proceedings to award the damages to plaintiff's leasehold, due to the construction of a viaduct over certain railway tracks in the City of Des Moines. The defendant sheriff selected a jury which awarded the plaintiff the sum of $ 2,000. From this assessment the City appealed to the District Court, and upon trial to a jury, in that court, a verdict was returned finding that plaintiff suffered no damages, and a judgment was accordingly entered against it for all of the costs of the proceedings. Plaintiff appeals.

Reversed.

Thos A. Chesire, for appellant.

H. W. Byers and R. O. Brennan, for appellees.

DEEMER J. EVANS, J. (dissenting in part).

OPINION

DEEMER, J.

In the year 1903, plaintiff, a corporation, made a fifteen-year lease of a building owned by one F. M. Hubbell, which building was two stories high, with a basement, located upon a lot facing upon West Seventh street, in the city of Des Moines. This building faced east and was sixty feet in width and one hundred and thirty-two in depth, with a subbasement of some height. The lessor agreed to keep the roof and outside walls, which were of brick, in repair, and the lessee was to make all other repairs; aside from this, the lessor reserved the right to make such repairs as he wished. The rental was $ 300 per month. Plaintiff occupied the building for a printing plant and used therein presses in the basement, had a stereotyping and printing department, a composing room, and other appliances used for printing newspapers, etc. It used large quantities of print paper, which were delivered to its building, and also considerable quantities of paper were used in its job printing department. These goods, and other material, were delivered by wagon, to and from the building. Seventh street is sixty-six feet wide, and Plum street, immediately north of the building, is a short one and is but thirty-three feet in width.

These proceedings were commenced before the sheriff, some time in the year 1911, and had reference to the proposed construction of a viaduct in Seventh street, crossing over a number of railway tracks to the south. By the proposed plan, the viaduct was to commence at Mulberry street, being a block north of the property which plaintiff occupied, and extending southward, gradually rising from Mulberry, and extending for something like eighteen hundred feet. The grade of the approach, from Mulberry street to the south, was five and nine-tenths feet to every one hundred feet in length, and this approach had concrete retaining walls which were filled with earth and were finally covered with concrete. The west wall of this viaduct was twelve and a half feet from the east wall of the building which plaintiff was occupying, and at the north line of Plum street, which is just north of plaintiff's property, was nine and one-half feet in height above the then present roadway. The entire width of the viaduct was forty-one feet, leaving but twenty-five feet, or twelve and one-half feet on either side, between the walls of the viaduct and the lot lines on either side of the street. Openings were left in the viaduct at Plum street, which were thirty-five feet in width, save that there were piers, subdividing this opening, which were two feet square, leaving but thirty-three-foot openings through the viaduct. It was contemplated that these openings should be fourteen feet high at the south side of Plum street, thirteen feet at the center, and twelve feet at the north side; but this would necessitate a changing of the grade of Plum street, by depressing it, at its intersection with Seventh street, and at the time of trial it was not known just how much this depression would be. But, as we understand it, the plans contemplated a depression of five feet at this point, thus throwing the sidewalk grade out of joint, on both the east and west side of Seventh street, to the extent indicated, which would have to be taken care of, by a like depression of the street, for considerable distances on either side of Plum street, or by stairways or steps. In other words, the opening through the viaduct could not be used for practical purposes, without the depression of Plum street as already contemplated, and until it (Plum street) was depressed this viaduct practically closed Plum street at its intersection with Seventh. The viaduct occupied so much of the street that it was impossible for teams to pass, longitudinally thereon, on either side of the retaining walls, without driving on the sidewalks, and while footmen might pass along the old sidewalks as they were, subject to change of the contour of the streets, they had to take the hazards of crossing all the railway tracks at grade, or at intervals taking steps leading up to the viaduct. The nearest one of these steps was sixty or seventy feet south of the building which plaintiff was occupying, and the stairway leading from the street to the viaduct at this point was six feet in width. The part of the viaduct fit for travel, in front of the building which plaintiff occupied, was thirty-six feet in width, inside the coping, and upon this a double-tracked street railway track was to be laid, which would occupy fifteen feet, in width, leaving ten and one-half feet on either side for wagon and foot passenger traffic. Plaintiff claims that its means of ingress and egress to the building has been seriously interfered with; that light and air have been cut off from the basement and first story of the building; and that the rental value of the property has otherwise been materially diminished and destroyed; and it introduced various witnesses, who testified to a damage of from $ 1,000 to $ 1,500 per year. Defendant offered other witnesses, who testified that the construction of the viaduct was no damage to the property, and some of them said it was a real benefit.

The jury found a general verdict for the city, which, interpreted, means that it found there was no loss in the rental value of the building by the construction of the viaduct. If the case stood upon the testimony alone, we would probably not be justified in interfering, for the verdict has support in the testimony and the facts in such cases are peculiarly for a jury. But plaintiff relies upon many alleged errors committed by the trial court--to be exact, forty-two in number. Of course, not all of these are argued, and the main propositions are grouped under headings, which very much reduce the number of assignments. We shall not pass upon all of these, however, for to do so would unduly extend this opinion, and shall confine ourselves to a consideration of the more important and controlling propositions. At the outset, we may say that the arguments, filed by the respective counsel, are inapposite and unrelated.

In an able and learned argument for the city, counsel contend that the erection of an elevated viaduct over, or along, a street for the purpose of general public travel, and dedicated to public use, is the equivalent of a street improvement, or change in a city grade, and that a land or lot owner, abutting on such street, is not entitled to any damages for the impairment of access to his property or for being deprived of light or air; and they cite many cases in support of this proposition, among them being Willis v. Winona City, 59 Minn. 27 (60 N.W. 814, 26 L. R. A. 142); Brand v. Multnomah County, 38 Ore. 79 (60 P. 390, 62 P. 209, 50 L. R. A. 389, 84 Am. St. Rep. 772); Mead v. Portland, 45 Ore. 1 (76 P. 347; s. c., 200 U.S. 148, 26 S.Ct. 171, 50 L.Ed. 413); Sears v. Crocker, 184 Mass. 586 (69 N.E. 327, 100 Am. St. Rep. 577); Talcott v. City, 134 Iowa 113; Sauer v. New York, 206 U.S. 536 (27 S.Ct. 686, 51 L.Ed. 1176); Colclough v. City, 92 Wis. 182 (65 N.W. 1039); Home Building Co. v. City, 91 Va. 52 (20 S.E. 895, 27 L. R. A. 551), and cases cited. In other words, they liken this case to one of change of grade and broadly contend that plaintiff's property was not taken for public use; that, if any damages are to be awarded, they are upon the theory that the grade has been changed; and that in such cases benefits may be considered, and no allowance may be made for deprivation of light or air. This, in part, meets the objections made by appellant's counsel to various rulings made by the trial court, and, were it not for certain statutes and decisions of this court in previous cases, the argument filed for appellee would be quite persuasive.

In view of these statutes and decisions, we are not convinced that appellee's argument is entirely responsive to the case made for appellant. Sections 771 and 771-a of the Code Supplement, as now amended, read as follows:

Sec. 771. When a viaduct shall be by ordinance declared necessary for the safety and protection of the public, the council shall provide for appraising, assessing and determining the damages which may be caused to any property by reason of the construction of the same and its approaches. The proceedings for such purpose shall be the same as are provided in case of taking private property for works of internal improvement, and the damages assessed shall be paid by the city out of the general bridge fund, or in cities having a population of twelve thousand, or over, from any other fund or funds legally available therefor.

Sec 771-a. In cities having a population of twelve thousand or over, where a viaduct is required to be constructed, and the plans therefor have been approved, and there are no...