Young v. Mahaska County

• Decision Date: 04 October 1893
• Citation: 56 N.W. 177,88 Iowa 681
• Parties: N. S. YOUNG, Appellant, v. MAHASKA COUNTY, Appellee; CITY OF OSKALOOSA, Appellant
• Court: Iowa Supreme Court

56 N.W. 177

88 Iowa 681

N. S. YOUNG, Appellant, v. MAHASKA COUNTY, Appellee; CITY OF OSKALOOSA, Appellant

Supreme Court of Iowa, Des Moines

October 4, 1893

Appeal from Mahaska District Court.--HON. D. RYAN, Judge.

The city of Oskaloosa entered into an agreement with the plaintiff by which he was to pave certain streets in the city around a public square for a specified compensation. The work was properly done, and there remains unpaid for the part of the paving abutting on the public square that which would be assessable thereto. For this part of the paving the city issued certificates of assessments against the public square and Mahaska county. The county refused payment, and this suit is against both the city and county, each denying its liability. The district court found for the plaintiff against the city, and for the county. Both the city and the plaintiff appeal.

Affirmed.

Seevers & Seevers, for N. S. Young, appellant. W. G. Jones and L. C Blanchard, for city of Oskaloosa, appellant.

B. W Preston, John F. & W. R. Lacy, and H. S. Winslow, for Mahaska county, appellee.

OPINION

GRANGER, J.

The cause was submitted on the following stipulation of facts, with some important facts omitted:

"First. The board of commissioners of Mahaska county, Iowa on the fourteenth day of October, 1843, entered the southeast quarter of section 13, in township 75 north, of range 16 west of the fifth principal meridian, Iowa.

"Second. That said board of commissioners, on the twenty-fifth day of May, 1844, caused said lands to be surveyed and platted for a town site, and the plat filed for record, and located the town of Oskaloosa thereon, a copy of which plat, together with their certificate and acknowledgment, is hereto attached, and made a part of this stipulation of facts, and marked 'Exhibit A.'

"Third. That the town of Oskaloosa was incorporated as a city under a special act of the legislature in 1855, and subsequently it reorganized under the general incorporation act of the state.

"Fourth. That the tract marked as 'Public Square' on the plat (Exhibit A) has never, since the execution of said plat, been used as a public square, and for many years has been inclosed by a fence, and set out with trees."

"Sixth. That on the twenty-first day of February, 1891, the city of Oskaloosa passed an ordinance, a copy of which ordinance is hereto attached, and marked 'Exhibit B.'"

"Eighth. When the town plat was made, and lots sold, the county reserved two lots one hundred and twenty feet deep, and fronting one hundred and twenty feet west on the street which bounds the public square on the east; said lots facing the said square, and eighty feet east thereof; and said county has since erected a courthouse on the said lots, and, when the contract to pave said square was made, said public square was surrounded by hitching rails of posts and iron rods, and was planted in trees, and the ground was seeded to grass, but had paving-tile walks running through the same. That no building was ever erected in said square by the county, and the only building ever constructed therein was a frame band stand, which is still on the said ground, except that temporary sheds were at one time erected on said land for use in covering machinery used in sinking an artesian well in said square. That said square has been used as a pleasure ground, and for public meetings, ever since the town was laid out. Wells were dug at each corner for public watering purposes. The artesian well has been piped, but does not flow, and has been covered up and preserved, but it is not in use, and never has been used. The square is built around with permanent store buildings, and is in the business center of the city, and all lots save those reserved as herein stated were sold to various parties, and this was done prior to the year 1850. The county has paid for paving in front of the courthouse to the middle of the street, the same as all the other private property owners have done who owned property fronting upon said public square.

"Ninth. On the twenty-third day of January, 1873, the county passed a resolution in regard to the boring of an artesian well in the said public square. That thereupon John N. Dixon, a taxpayer of said county, commenced suit in the district court of Mahaska county, Iowa to enjoin the said county from paying the sum appropriated in said resolution, and the said court enjoined the same by its decree against the board of supervisors of said county, said defendants making no defense. That said city thereupon proceeded to drill said well at its own expense to a depth of two thousand seven hundred and fifty feet, and at a large cost.

Tenth. That the city has used its force of street workers from time to time to cut the grass, to clean the said square, to trim the trees therein, and generally to keep the same in a cleanly condition."

"Eleventh. When the courthouse was being built, in 1881, there was a large amount of earth belonging to the county to be removed from the courthouse lot, and the same was hauled out into the public square by the county's contractor, with the consent of the city and county, and used in filling up and grading the same, the expense of excavating and hauling said earth into the said square being paid by the county. That the city authorities took charge of the grading of said square and put its street commissioners and a force of men to work to level off said square as the dirt was hauled in, and the said square was graded by the city, and the leveling done under its direction, the expenses, except the digging and grading, being borne by said city.

"Twelfth. That notices have been kept posted up by the city in the square for many years forbidding persons to walk upon the grass or in any manner injure the trees therein.

"Thirteenth. That on September 11, 1888, the board of supervisors of said county made an appropriation of two hundred dollars for the purpose of building cross walks through said public square. The city also appropriated one hundred dollars for said purpose. The...