13 Iowa 66 | Iowa | 1862
— The appropriation relied upon by plaintiff, took place in October. 1857. At that time, ch. 210, Laws of 1856-7, p. 843, was not in force, and with its provisions, therefore, we have nothing to do in the consideration of the questions here involved.
If there was an appropriation of the plaintiff’s property, within the meaning of the law and the city ordinances, and if he has performed all the conditions precedent, (if any,) required of him, it is admitted that he is entitled to recover,
And first, as to the condition precedent, we are of the opinion that the court did not err in holding that plaintiff could recover without a prior tender of a deed. No such issue or question was made by the pleadings, nor anything indicating that defendant relied upon such a defense. Waiving this, however, we hold that under sec. 3, ch. 54, Laws 1853, (“ An act to amend an act to incorporate the city of Dubuque,”) and ch. 17, Laws 1855, (“ An act to amend an act to incorporate,” &o.,) a tender of the deed
Whether there was an appropriation of plaintiff’s land for the purpose of a street, as claimed by him, was left as a question of fact, to the jury. Upon this subject, defendant asked this instruction: “The plaintiff cannot recover without showing that the city council did, by resolution, declare the street to be opened in acccordance with the ordinance.” The fourth section of the ordinance referred to, provides, that, if, upon examination of the report of the engineer and assessment, the city council shall decide that it is expedient to lay out, open, or extend the street, they shall proceed to pay the damages, and procure deeds of relinquishment. And then, after providing for the absence of the owner, or his inability to make a deed, it is 'ordained that they “ shall thereupon proceed and by resolution declare such street to be opened, laid out or extended, as the case may be,, and a record of the plat, ánd a description thereof to be recorded,” &c. Now, in the first place, we understand the resolution of the council in reference to declaring the street opened, &c., to refer to a time subsequent to the payment of the assessment. And
In this case, plaintiff’s assent is shown affirmatively, from the testimony as well as by the institution of this suit; and the failure, by the city, to pass a' “ resolution declaring the street opened, in accordance with the ordinance,” could not defeat his recovery.
Affirmed.