Williams v. Carey

Decision Date26 October 1887
Citation73 Iowa 194,34 N.W. 813
PartiesWILLIAMS AND OTHERS v. CAREY, MAYOR, AND OTHERS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Polk county.

The petition states that the plaintiffs are the owners of certain lots in Leynor's addition to the city of Des Moines, which abut on Madison street, and that the defendants constitute the council of said city, and propose to vacate 12 feet off of the east side of said street. To prevent this is the object of this action. At the hearing the defendants were perpetually enjoined from vacating any portion of said street.Detrick & McMartin and C. P. Holmes, for appellants.

W. B. Raymond and P. Gad Bryan, for appellees.

SEEVERS, J.

The conceded facts are that, when Leynor's addition to Des Moines was laid out, platted, and recorded, the fee or title to the streets was vested in the city. Madison street runs north and south, parallel to Nineteenth street. The former is 53 1/2 feet wide, and Nineteenth street is 38 feet wide. Madison is a short street, being only 1,000 feet long, as we understand. The plaintiffs own property abutting on the west side of Madison street, and the city council proposes to vacate 12 feet off of the east side of said street, and convey the same to the owners of lots between that street and Nineteenth, in consideration of which said property owners agree to convey to the city the same quantity of land off of the east side of their lots, which abut on Nineteenth street. So that, if this project is carried into effect, the width of Nineteenth street will be widened 12 feet, and Madison will be that much narrower than it now is.

It is provided by statute that cities have the “power to lay off, open, widen, straighten, narrow, vacate, extend, establish, and light streets. * * *” Code, § 464. Under this statute the defendants claim that the city has the power to do what is proposed to be done. This is denied by the plaintiffs; their claim being that they became the owners of their lots upon the faith and implied promise that Madison street should always remain a public highway, of the same width as it was when they purchased their lots, and that they will be materially damaged if the proposed change in the width of such street is made. The defendants deny that the plaintiffs will be in any material respect damaged by such change.

Both parties have cited and largely rely on the prior decisions of this court in support of their respective theories. The plaintiffs cite and rely on City of Dubuque v. Maloney, 9 Iowa, 450, and Cook v. City of Burlington, 30 Iowa, 94. In the first case, the fee to the streets was in the abutting property owners, and in the latter, the fee to the land in controversy was in the city. It is evident, it seems to us, that the facts just stated make a material difference, and that the rights of abutting property owners may be greater in such case than where the fee is in the city. In Yost v. Leonard, 34 Iowa, 9, the proprietor who had laid out the town sought to vacate certain streets, the title to which he had conveyed to the town, and such were in substance the facts in Fisher v. Beard, 32 Iowa, 346. These cases are materially different from the one at bar. The plaintiffs cite City of Marshalltown v. Forney, 61 Iowa, 578, 16 N. W. Rep. 740, and Dempsey v. City of Burlington, 66 Iowa, 687, 24 N W. Rep. 508. In the former there were no private rights involved. The material question was whether the act of the city vacating the alley was ultra vires. In the latter the only questions were as to the validity of the ordinance, and whether the parties were entitled to notice of the application made for the vacation. What is there said as to the power of the city was by way of argument on the question whether the ordinance was void because it contained more than one subject. In Warren v. Mayor of Lyons, 22 Iowa, 354, the city claimed the right to divide a...

To continue reading

Request your trial
2 cases
  • City of Raleigh v. Durfey
    • United States
    • North Carolina Supreme Court
    • October 1, 1913
    ... ... from Superior Court, Wake County; Cooke, Judge ...          Controversy ... without action between the City of Raleigh and Carey K ... Durfey. Judgment for plaintiff, and defendant appeals ... Affirmed ...          Where a ... municipal corporation built a ... Meroney, 154 N.C. 158, 69 S.E. 838; ... Marietta v. Henderson, 121 Ga. 399, 49 S.E. 312, 104 ... Am. St. Rep. 156, 2 Ann. Cas. 83; Williams v. Carey, ... 73 Iowa, 194, 34 N.W. 813 ...          As the ... landowners abutting on Exchange places are not complaining, ... and can ... ...
  • Williams v. Carey
    • United States
    • Iowa Supreme Court
    • October 26, 1887

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT