City of Davenport v. Stevenson

34 Iowa 225 | Iowa | 1872

Day, J.

It is conceded that the city of Davenport owns the fee in the streets. The city, by ordinance, authorized the M. and M. Railway Co. to lay its track along Fifth street. It is not claimed but that the road was constructed and is now used with reasonable skill and care.

The position of appellant is that the owner of a lot has such an interest in the adjacent street as entitles him to recover the damages to his lot consequent upon the use of the right of way over said street by a railway. That the obligation to grade, pave or plank the street was imposed upon the railroad company by the city of Davenport for the benefit of the abutting lot owners, in consideration of the injury to their rights of property by this new use of the street. That the right to have this obligation enforced against the railroad company became a vested right in the property owners. That the subsequent ordinance of the city releasing the railway company from its obligation to grade and pave is void, in consequence of its interference with this vested right; or if binding between the city and the railway company, that the obligation to pave said street devolves upon the city. Appellant’s argument is grounded upon his right to recover damages for the use of the street for railway purposes, for if no such right exists, there was no consideration moving from him for the undertaking to pave the street, and he acquired no vested interest in said agreement.

The existence of this right was denied in Slatten v. Des Moines Valley Railroad Company, 29 Iowa, 148, upon full consideration, and a review of many of the authorities cited in appellant’s brief.

A majority of the court, considering this adjudication as decisive against appellant’s defense, deem it unnecessary to devote further space to the consideration of the question presented.

The chief justice concurs in the general result of this determination, but bases his opinion upon the view that the undertaking of the M. & M. Railway Company to grade and plank the street so as to make a complete roadway did not render it liable for the construction of sidewalks.

Affirmed.