155 Iowa 745 | Iowa | 1910
The plaintiff has owned and resided on lots 1 'and 2, in block 38, of Havnon & Le Valley’s addition to the city of Waverly, since 1887. The ends of the lots .abut on Market street, lot 1 lying along Linn street. Tn 1882 he planted eight elm trees along the east side of lot 1 between the board walk and the curb line, and these trees are now twenty-five or thirty feet high. and ten to fourteen inches in diameter. In 1887 a cement sidewalk replaced the board walk, and in 1894 the city by ordinance established the grade of the streets therein, and among other things ordained that the roadway in Linn street be thirty-four feet wide, seventeen feet on each side from the «enter to the curb line. In 1889 the entire street was brought down to grade, except that part between the curb line and lot 1 and a like tract across the way. The plaintiff put in curbing, and a driveway from the street was cut down. The portion undisturbed was from twenty-three to thirty inches above the grade, so that he placed two large stones as steps next to the alley at the south to enable pedestrians to reach his cement walk and built a retaining wall along the alley line to the curbing. At %he other end there was a plank approach. We understand that the parcel of ground between the curb and
Though the facts differ from those of Burget v. Town of Greenfield, 120 Iowa, 432, the principle is identical. It was there said: “A condition precedent to the construction of a permanent walk was the bringing of the bed of the. same to grade (Code, section 779), and this was to bo done by the town. The council, however, required plaintiff to construct a permanent walk without providing for bringing the bed of' the walk to grade and without doing so in fact.' Neither did the town point out the grade line. These things it was required to do, not only by inference from the statute, but by express provision of its general ordinance above referred to. Where a city has undertaken to avail itself of the provisions of the statute, and has fixed in its general ordinance the mode of procedure, it is limited to the mode prescribed in the ordinance. Zelie v. Webster City, 94 Iowa, 393. It was therefore impracticable for the plaintiff, 'at the time when the cement sidewalk in question was first ordered by the council, to comply with the order, and he is not in default in not having done so.” Converse v. Town of Deep River, 139 Iowa, 740; Waterbury v. Morphew, 146 Iowa, 313. We do not say that the bringing of the street to grade is a condition precedent to the adoption of a resolution ordering a permanent sidewalk. What we do hold, and so announced in Burget's case, is that this is a condition precedent to the construction of the walk, and, as the city failed to reduce the street to grade within the time plaintiff might have put in the walk, he was not in default in failing to