Young v. Gormley

• Decision Date: 09 February 1903
• Citation: 93 N.W. 565,119 Iowa 546
• Parties: AMELIA A. YOUNG et al., v. T. A. GORMLEY et al., Appellants
• Court: Iowa Supreme Court

93 N.W. 565

119 Iowa 546

AMELIA A. YOUNG et al., v. T. A. GORMLEY et al., Appellants

Supreme Court of Iowa, Des Moines

February 9, 1903

Appeal from Lynn District Court.--HON. W. G. THOMPSON, Judge.

THE land included in Young's addition to Mt. Vernon was acquired by S. T. Young in 1854, and by him platted in 1860. The tract in controversy is a strip sixty-six feet wide lying between lot 3 and lots 4 and 12, extending from Main street in a northeasterly direction to the quarter-section line. Between it and Munroe street lies a portion of lot 5 which appears to have been acquired by the town some years ago. Young died in 1896, and the plaintiffs are his widow and heirs. A dispute arose between them and town authorities as to whether this land was a street, and the council, in response to a petition of citizens, adopted resolutions to the effect that Penn street, by which it seems to have been known, be opened, and "that the marshal and street commissioner be ordered to remove the sidewalk and fence now standing across Penn street." The mayor thereupon directed the street commissioner to execute this order, and the marshal to protect him while doing so, and they removed the alleged obstructions. Plaintiffs replaced them, and again they were removed by the officers. Thereupon this action was begun, the petition alleging that the mayor, Gormley, and two of the councilmen, Willix and Leigh, conspired and confederated together unlawfully to injure plaintiff's real estate, and in pursuance thereof pretended to act as council of the incorporated town of Mt. Vernon, and as such to adopt a resolution to the effect that Penn street be opened; that they directed the other defendants, Geiger, the marshal, and Alexander, the street commissioner, to remove the fences and sidewalks from the disputed strip of land which the latter did; that said parties were acting together as individuals in said matter, and with malice; that said strip had never been platted or dedicated as a street, nor accepted by the authorities as such, but had been occupied by plaintiffs, and those under whom they claim, adversely for more than forty years. The defendants responded in their answer by asserting they were officers of the town, and had acted in the capacities mentioned; that the strip of land was one of the streets of said town, and legally established as such; that the resolutions mentioned were regularly adopted by the town council; and that defendants without improper motives, and acting solely in their official capacities as officers of said town, proceeded to open said street. Trial to jury resulted in a verdict against all defendants save Geiger for actual and exemplary damages, upon which judgment was entered, and they appeal.

Reversed.

Jamison & Smyth for appellants.

Charles W. Kepler for appellees.

OPINION

LADD, J.

A strip of land had been in dispute for several years. It was claimed by the incorporated town of Mt. Vernon as a street--Penn street-- extending from Main street, between lot 3 and lots 4 and 12 of Young's addition, to the quarter-section line, but separated from Munroe street by a part of lot 5. It was claimed by plaintiffs as an inheritance from S. T. Young, who had platted the addition, and also because of adverse possession. The pleadings put in issue: (1) The existence of this street; (2) whether defendants, in what they did, were acting officially; (3) If not, whether they corruptly conspired together to injure the property of plaintiffs; (4) whether, if they did not so conspire, any of them in fact injured said property; and, (5) if so, were such as did actuated by malice.

Appellants insist that, as conspiracy was alleged, no recovery could be had unless this were proven. Were the wrong alleged actionable only because of an unlawful combination of several persons, the position would probably be sound. Jenner v. Carson, 111 Ind. 522 (13 N.E. 44); Collins v. Cronin, 117 Pa. 35 (11 A. 869). But where the tort may have been committed by one or more, independent of any conspiracy, that allegation is of no consequence, so far as the cause of action is concerned. Damage is then the gist of the action, and not conspiracy. In order to recover against all defendants, it is necessary to prove a combination or joint act of all. For this purpose proof of conspiracy may become essential. But if it turn out that but one was concerned, recovery may be had against that one the same as though he had been sued alone. If more than one jointly do the wrong, like recovery may be had, though conspiracy had not been established. In other words, the allegation of conspiracy in such cases is mere matter of inducement and evidence, the injury and damages being the gravamen of the action. Van Horn v. Van Horn, 56 N.J.L. 318 (28 A. 669); Laverty v. Vanarsdale, 65 Pa. 507; Austin v. Barrows, 41 Conn. 287; Jones v. Baker, 7 Cow. 445; Parker v. Huntington, 2 Gray 124; 4 Enc. Pl. & Prac. 739.

II. The evidence without any conflict shows that the council, in regular session, adopted a resolution to open Penn street, in 1897, and another, November 6, 1899, "that the marshal and street commissioner be ordered to remove the sidewalk and fences now standing across Penn street." This appears from the...