| Iowa | Mar 7, 1922
— On or about July, 1899, the council of the defendant city, by resolution, ordered sidewalks constructed upon both sides of Fifth Street, which extends north and south through said city. Appellant is the owner of the south 50 feet of the south one half of Block 10, Miller’s Addition to Perry, Iowa, which is located on the west side of Fifth Street, between Paul Street on the north and North Street on the south. A
It is not seriously contended by appellant that the sidewalk in question was, in fact, constructed upon the grade established by the council in 1891. Plaintiff purchased the lot in question in 1917, but the residence situated thereon was constructed many years prior thereto. The jury might well have found from the record, had the question been submitted to it, that appellant’s residence was built on the lot prior to 1897. Appellant contends that his property was improved with particular reference to the sidewalk constructed by the city in 1899, which the owner supposed was on the established grade, and that it was damaged by the construction of the cement curb and gutter in front thereof at the new grade, which places the top of the curb from 7 to 10 inches higher than the sidewalk. The evidence tends to show that appellant’s property is somewhat low, and that, after the sidewalk was built by the city in 1899, the then owner thereof caused about 40 or 50 loads of dirt to be placed thereon. The elevation of the top of the fomidation at the northeast corner of the house is a trifle higher than the sidewalk, but a few inches lower than the top of the curb. The general slope of the surface of appellant’s lot, as improved, is toward the rear.
Section 779 of the Code of 1897 confers authority upon cities and towns to provide for the construction, reconstruction, or repair of permanent sidewalks upon any street within the limits thereof, but also provides that the “construction of permanent sidewalks shall not be made until the bed of the same [street] shall have been graded so that, when completed, such
The principal contention of appellant is that the owner of the lot in question had a right, in improving the same by filling, and by planting trees and shrubbery, and by the construction of cement walks thereon, tó connect with the sidewalk in front thereof, to presume that the officers of defendant city had performed their duty, and had placed the sidewalk upon the grade legally established■ for Fifth Street; so that appellant’s claim for damages is not, in fact, based upon a change made by the defendant city in a previously established paper grade, but for damages resulting from the construction of a permanent sidewalk by the city at an arbitrary elevation, and without reference to the then existing established paper grade of Fifth Street, — although it is not so pleaded., So far as the record shows, no protest, based upon the failure of the defendant city to construct the sidewalk on the permanent grade, was made against the assessment by the city council of the cost thereof against appellant’s property. Had such objection been made, it may be assumed that the assessment would have been defeated. Landis v. City of Marion, 176 Iowa 240" court="Iowa" date_filed="1916-05-10" href="https://app.midpage.ai/document/landis-v-city-of-marion-7116806?utm_source=webapp" opinion_id="7116806">176 Iowa 240; Shaver v. Turner Imp. Co., 155 Iowa 492" court="Iowa" date_filed="1912-06-05" href="https://app.midpage.ai/document/shaver-v-j-w-turner-improvement-co-7114975?utm_source=webapp" opinion_id="7114975">155 Iowa 492. But no showing whatever was made by appellant that improvements had been made on his property with reference to a legally established grade. As already stated, the paper grade established in 1891 in front of appellant’s property between Paul and North Streets was from one to three feet higher than the new grade; established in 1919. A property
Appellant’s property was not improved with reference to an established grade. No damage results’ to property abutting upon a street by the mere establishment of a paper grade, even though it be by the alteration of a prior legally established grade. Damages accrue only upon the physical bringing of the street to grade. York v. City of Cedar Rapids, 130 Iowa 453" court="Iowa" date_filed="1905-06-09" href="https://app.midpage.ai/document/york-v-city-of-cedar-rapids-7111909?utm_source=webapp" opinion_id="7111909">130 Iowa 453; Vilas v. Chicago, M. & St. P. R. Co., supra. We said, in the latter case:
“To entitle an abutting lot owner to recover under this statute, five elements are essential: (1) A grade must have been established by ordinance; (2) the lot owner must have improved his lot-with reference to the grade so established; (3) a new and different grade must have been subsequently established by ordinance; (4) the municipality must have changed the physical grade to conform to the new paper grade; and (5), in consequence thereof, the owner’s property must have been damaged, injured, or diminished in value.”
We hold, therefore, that plaintiff did not make out a case, and that defendant’s motion to direct a verdict in its favor was properly sustained. — Affirmed.