139 Iowa 599 | Iowa | 1908
The record discloses the following facts: The original plat of the town of Centerville provided an alley twenty feet in width between lots eight and nine, in block No. four. This alley appears to have been recognized and used as a public way until about August 29, 1902, on which date the city council by ordinance apparently duly and formally enacted- declared the same vacated. There is evidence tending to. show that, at the time of this vacation, a post-office building was about to be erected by the United States government in said city, and there was a movement by some of the people of the place to secure its
On June 12, 1905, the city council, after the usual notice by publication, adopted a “ resolution of necessity ” for paving certain streets and alleys, including therein the alley in question. The plaintiff, who is a resident of Centerville and owner of a part of the property abutting upon said alley, did not appear when said resolution came up for final consideration or make known any objection thereto, nor did he object to the work of paving while the same was in progress. The pavement having been completed, a special assessment was laid upon plaintiff’s property for its alleged proportion of the cost of the improvement, including the pavement of the alley together with pavement of the street fronting upon said property; said assessment for both alley and street being computed and stated in a single sum. At the meeting of the council called to consider objections to the special assessments for the cost of said paving, the plaintiff appeared and objected thereto on the ground that the alley had been vacated, and the council had, therefore, no authority to order said space paved or to assess or charge the plaintiff’s property with any part of - the cost or expense thus incurred. This objection being overruled, the assessment
As we have already noted, there is and can be no claim of prescription in this case. There has been no attempt to establish it by ordinance. Assuming that the effect of the ordinance was to place or rather to leave the title to the land in the city, and that the city, if so disposed, could' re-establish the alley by dedication or otherwise, is the mere act of ordering' its pavement at the expense of property such a dedication ? We are of the opinion that this question must be answered in the negative. The legislature in its wisdom has provided that no street, highway, or alley which shall be dedicated to public use in any municipal corporation shall be deemed a public street, highway, or alley, “unless the dedication shall be accepted and confirmed by an ordinance or resolution specially passed for such purpose.” Code, section 751. It is true, of course, that the primary purpose of the restriction is to prevent persons owning lands within cities and towns from casting upon the municipality the burden and obligation of caring for streets and public ways