City of Des Moines v. Des Moines Water Co.

230 F. 570 | 8th Cir. | 1916

TRIEBER, District Judge

(after stating the facts as above). [1] The statutes of Iowa malee no provision for the time, within which an award in a condemnation proceeding shall be paid. It would be unreasonable to presume that for that reason this power does not rest somewhere, or in some tribunal. That the condemnor should be required to make payment within some reasonable time, must be recognized by all, as it is our opinion that, if the parties cannot agree among themselves within what time the money is to be paid, as was done in this instance, the court in which the cause is pending, is the proper tribunal to determine it, giving due consideration to the peculiar circumstances in each case. Unless the time of payment is either fixed by statute, or the power to do so possessed by some tribunal, the con-demnor may postpone payment indefinitely, and, as stated by counsel for the defendant in their brief, “forever create a cloud upon the title to property by simply starting a condemnation proceeding, and securing a judgment fixing the value of the property.” This may not be done. City of Chicago v. Barbián, 80 Ill. 486. Counsel for the city do not seriously contest this proposition.

[2] It is not disputed by counsel for the plaintiff that, if the judgment entered at the November, A. D. 1913, term, fixing the time within which the plaintiff was to pay for the waterworks, was a final judgment, the court would be powerless to modify it after the term, at which the judgment was rendered, had expired, , but it is earnestly insisted that that part of the judgment, which fixes the time, within which the payment by the city was to be made, is only interlocutory, and not final, especially in view of the fact that by the judgment the court retained jurisdiction of the cause for the purpose of making such further orders as may be necessary to determine the value of the additions and extensions to the water plant made subsequent to the first day of April, 1912, the valuation of the plant having been fixed as of that date. We must, therefore, determine whether this was an interlocutory or final judgment.

At first blush, an examination of the authorities on that question, would lead one to believe that there is a hopeless conflict among them, but a more careful examination of the facts in each case shows that this conflict is only apparent and not real, and that in fact there is practically no conflict, at least among the decisions of the Supreme Court of the United States and of this court. Authorities of the Supreme Court, and which, in our opinion, are directly in point are Forgay v. Conorad, 6 How. 201, 12 L. Ed. 204; Wabash & E. Canal Co. v. Beers, 1 Black, 54, 17 L. Ed. 327; Thompson v. Dean, 7 Wall. 342, 19 L. Ed. 94; Winthrop Iron Co. v. Meeker, 109 U. S. 180, 3 Sup. Ct. 111, 27 L. Ed. 898; Re Farmers’ Loan & Trust Company, 129 U. S. 206, 9 Sup. Ct. 265, 32 L. Ed. 656; Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 10 Sup. Ct. 736, 34 L. Ed. 97; McGourkey v. Toledo, etc., R. Co., 146 U. S. 536, 13 Sup. Ct. 170, 36 L. Ed. 1079.

9This court has passed upon this question a number of times and its decisions are without conflict. A leading case in this court is Chase v. Driver, 92 Fed. 780, 34 C. C. A. 668. Judge Sanborn, speaking for the court in that case, after a very careful and analytical review of- all the opinions of the Supreme Court on that subject, declared the rule to be that, a decree which orders a judicial sale, or takes the property from one person, and orders it to be delivered to another, is final, although the case is referred to a. master to state an account between the parties, when the main object of the proceeding is to obtain the property in controversy from the party in possession thereof, saying:

“This is almost invariably the case in the foreclosure of a mortgage upon a great railroad, and in the disposition of valuable property involved in litigation among numerous claimants.”

The opinion in that case is so elaborate and the citation of authorities so complete that nothing need be added to it. The conclusion there reached has been followed and reaffirmed by this court in a number of cases. Hapgood v. Berry, 157 Fed. 807, 85 C. C. A. 171; Byrne v. Jones; 159 Fed. 321, 90 C. C. A. 101; Home Street Ry. Co. v. City of Lincoln, 162 Fed. 133, 89 C. C. A. 133.

[3-5] But even if the judgment were not final, we would not feel at liberty to set aside the order of the trial court, refusing to grant the extension. It cannot be doubted that the application was one addressed to the discretion of the court, and the rule is well established that, in such a case an appellate court will only be justified to set aside an order addressed to the discretion of the court, if it clearly appears that there was an abuse of such discretion. That there was no such abuse appears beyond question from the statement of facts set out in the petition of the plaintiff.

As the laws of the state of Iowa require the authority to issue bonds, to pay for the waterworks condemned, from the voters of the city expressed at an election called for that purpose, the parties to this action agreed in the judgment entered by consent, that the plaintiff be given the unusual time of twelve months, to pay for the property.

As appears from the plaintiff’s petition, the proposition to issue the necessary bonds was submitted to a vote of the people of 'the city on three different occasions, and although a majority of the voters were in favor of the bond issue at each of these elections, at neither of them was there a majority cast for the proposition of all the votes cast at the last preceding municipal election, as required by the laws of the state. The last election for that purpose was held on November 3, 1914, and it was alleged in the petition that it would be impossible for the city to hold another election in time to raise the money on or before the 3d day of December, 1914, when by the judgment of the court, it had to be paid. And it is further claimed that, as under'the judgment of the court the defendant is to retain the water plant system, / and have the earnings thereof, and is to be paid'for all additions and extensions to said plant and system, no damage or loss could possibly result to the defendant, if the time for such payment should be extended by the court.

A complete reply to this contention is: What guaranty is there that, if the time is extended, the necessary majority could, within a reasonable time, or ever, be obtained, to issue the bonds, which are the only means, as alleged in the petition, the city has, to pay for the waterworks? At three elections the necessary majority could not be obtained. To require the defendant to hold the property subject to such an uncertainty would work great injustice, not only to the defendant, but also to the city, for, under these circumstances, the company may not be inclined to expend the moneys necessary to maintain the system in that perfect condition so essential for the health of the people of the city and, the protection of its property from fire loss. The fact that the court has, by the reservation in the judgment, the right to grant compensation for such additions, betterments and improvements may and probably will lead to further litigation, as the parties may not agree on the amounts expended for such additions, and the necessity for them.

Under these circumstances it can certainly not be claimed with any good reason that the court abused the discretion vested in it by law.

We are of the opinion that the court com'mitted no error in denying the plaintiff’s request, and its judgment is affirmed.