40 Iowa 576 | Iowa | 1875
The question of law presented in this case is a novel one. It is this: Where a road, for a part of its course, is vacated may the owner of land situated on the part not vacated, recover damages sustained by him on account of the vacation?
I. That a land owner may sustain damage according to the common acceptation of the word, on account of the vacation
It cannot be claimed that plaintiff’s property, by the vacation of the road, is taken from him either for public or private use. The right to the continuation of the highway held in •common with the public, if it exists, cannot be claimed to be property of the character which the citizen holds free of gov-ermental interference, except upon receiving therefor due com
It will be readily seen that different rights of the citizen are invaded when a road is established, than when one is vacated. In the establishment of a highway real property must be taken for public use, and the law provides in such cases for compensation to the land owner. In the vacation of a road the land so taken is restored to the owner, and the right of the public to its use is cut off. The citizen has no right to the continuation of the road, except such as he holds in common with the public. The distinctions between the right of a citizen to the use of an existing highway and his right to its continuation, are also plainly discernible. While he may not be deprived of the first right, the second he holds subject to the exercise of lawful authority.
II. It is urged that plaintiff’s right to recover damages is secured by Code, § 946, and other provisions. The proceedings
A question is made by plaintiff as to the effect -of the order in case thejudgment in his favor be held erroneous. The order establishing the road is conditional upon the payment of the damages assessed. It is insisted that, if the judgment for damages be set aside, the whole order must be held invalid. This question is not now before us. The appeal to the Circuit Court was from the order allowing damages, and no other question than those pertaining to the right of plaintiff to damages, was decided there. No other branch of the case can be considered here. The question raised by plaintiff must be determined in other proceedings.
The judgment of the Circuit Court awarding damages to plaintiff is
REVERSED.