Lead Opinion
Each plaintiff appealed to district court from denial of damages allegedly resulting from defendant-board’s Code chapter 306 order vacating bridge portion of local secondary road. Both cases were consolidated for purpose of submission. Defendant filed motions to dismiss and for adjudication of law points. Trial court overruled motions to dismiss. With leave granted (rule 332, R.C.P.), defendant takes unchallenged appeal. We affirm.
Although the record fails to so disclose, it is assumed plaintiffs’ petitions and defendant’s motions, on appeal to district court, are identical in each of the cases presented.
March 1960, Bridge No. 2801, crossing Walnut Creek, in Pottawattamie County, located on a local secondary unimproved road, was destroyed by ice and never replaced.
April 8, 1966, county board of supervisors published notice of hearing on proposed vacation of that part of the roadway lying between the creek banks. Section 306.6, Code, 1966.
Plaintiffs, Annie A. Braden and Laura A. Rush, owners of land adjoining either side of the roadway and both sides of the creek, filed objections to the proposal, also claiming damages.
After hearing on objections and claims, the board entered an order of vacation as proposed and denied damages sought by plaintiffs.
Braden and Rush both appealed to district court. Section 306.11, Code, 1966.
The sole proposition urged by defendant in . support of reversal is that plaintiffs’ petitions failed to state a- cause of action because (1) the respective properties do not abut that portion of the roadway being vacated so as to affect rights of access to highways generally, and (2) plaintiffs’ individual rights of access to abutting roadway are not substantially interfered with or cut off.
I. Trial court’s rulings on motions for adjudication of law points are neither challenged nor argued on appeal. In that regard this court has repeatedly held a proposition neither assigned nor argued presents no question and need not be considered by us on review. See Associates Discount Corp. v. Held,
II. The first question posed is whether plaintiffs’ properties abut that portion of the road vacated by defendant-board.
Walnut Creek is a nonnavigable waterway running generally north and south.
Braden owned land north of the subject road, the material portion here concerned consisting of a 240-foot tract dissected by the creek.
The Bush land consists of 40 acres south of the roadway, also divided by the stream.
Ordinarily the boundary line between lands of separate owners, bordering on a nonnavigable waterway, is the middle thread of the channel. But where, as in the ease at hand, such a watercourse flows over the land of a singular owner, he generally has title to the whole of the stream bed within the boundaries of his property. Holmes v. Haines,
III. However, defendant argues plaintiffs’ lands do not abut the bridgeway itself by reason of which there is no abutment with that part of the road vacated. This argument is without substance.
The order entered by defendant-board is not before us. But plaintiffs’petitions alleged the area vacated is the public road 66 feet wide between the banks of Walnut Creek. For our purpose this factual allegation must be accepted as true. See Burd v. Board of Education of Audubon County,
With regard to the foregoing, section 306.8, Code, 1966, provides in part: “Any person owning land abutting on a road which it is proposed to vacate and close, shall have the right to file, in writing, a claim for damages at anytime on or before the date fixed for hearing.”
As employed in section 306.8, supra, the term “land abutting on a road.” means lands adjoining, coming together with, contiguous to, meeting or touching a roadway. See section 4.1, paragraph 2, Code, 1966; Wormley v. Board of Supervisors,
Since each of these plaintiffs owned land, including the creek bed, adjoining the right-of-way vacated, they were owners of lands abutting the road vacated or closed.
IV. As aforesaid it is also urged by defendant-board, plaintiffs have the same rights of access to their lands as they had prior to the vacation of a part of the secondary road. Stated otherwise, it is argued plaintiffs can recover no damages because their rights of access have not been substantially interfered with or cut off.
However, that argument presupposes we are here dealing only with rights of access to and from a given point on the roadway and a given point on plaintiffs’ lands, which is not our problem.
Neither are we here confronted with a question as to whether an owner of a single unit tract of land adjacent to a highway may recover damages allegedly sustained by virtue of the vacation of a remote part of it, as in Hinrichs v. Iowa State Highway Commission,
In fact, the issue presented in the case at bar is whether an owner of land abutting an access free county road, part of which is vacated in such manner as to eliminate an only existing direct means of access between two portions of his land, operated
Touching on that subject we said, in Lehman v. Iowa State Highway Comm.,
And Magdefrau v. Washington County,
Continuing, this court "said: “The claim for damages in the ease at bar, filed with the board, brings it within the rule announced in the above case of Heery v. Roberts. Claimants own land in the quarter section east of and abutting upon the road proposed to be vacated. Their claim states that Williams Creek,which cuts such road, cannot be crossed with farm implements or vehicles except over the bridge on said road, and access to their land south of the creek will be prevented, except by a long detour or heavy expense. It is apparent that the allegations of their claim state damages peculiar to themselves and not to the general public.”
And Hultman, Eminent Domain in Iowa, Revised Ed. (1962), page 22, states: “* * ■* once a right of access vests in the landowner, it is regarded as one of the rights appurtenant to
As a basis for this statement, he refers to Iowa State Highway Commission v. Smith,
See also Wilson v. Iowa State Highway Commission,
In support of its position defendant cites and leans heavily on Warren v. Iowa State Highway Commission,
Warren, supra, involved a chapter 306A police power proceeding, where property owner’s access by direct route over an established secondary roadway between two noncontiguous single unit operated tracts of land, , neither of which abutted the vacated portion óf a road, was cut off by vacation of a part of that road in connection with construction of an access controlled highway. Without reference to the matter of severance, this court held the owner suffered no compensable injury since he still had access, though circuitous, to and from the two tracts via the existing general highway system, his inconvenience being no different from that suffered by the public generally.
And in Christensen v. Board of Supervisors of Woodbury County, supra, loc. cit.,
We conclude where, as in the instant case, two portions of
In addition to authorities already adduced, the following lend general support to the views expressed above. Jones v. Iowa State Highway Commission,
Y. It is to us evident plaintiffs alleged a cause of action and trial court correctly overruled defendant’s motions to dismiss.
Affirmed as to each case.
Dissenting Opinion
I respectfully dissent. If recovery is to be allowed here, Warren v. Iowa State Highway Commission,