City of Des Moines v. Dorr

31 Iowa 89 | Iowa | 1870

Milker, J.

— The only question presented for our determination is whether the appellant, J. M. Dorr, is liable for the payment of the cost of constructing the sidewalk on Sixth street in front of the leased premises.

These premises were situated at the intersection of Sixth and Walnut streets, being a corner lot with twenty-two feet front on the latter street, and one hundred and thirty-two feet fronting on the former. It will thus be seen that the lot had two fronts, as every corner lot necessarily has, because its face is opposite to cmd fronts on two different streets.

, By the terms of the lease, the lessee agreed to “pay all taxes assessed against the improvements placed by him on said premises, and keep up the sidewalks in. front of the same in accordance with ordvna/nces of the city.” His agreement was not simply to' keep up a sidewalk, but the sidewalks; more-than one sidewalk was intended or the parties would not .have used the plural noun. The sidewalks in front of the lot leased were to be kept up by the lessee. The .front of a lot is, very well known to be that part of the same which faces a street or streets. It' may front on one street only or it may front on two. What is the front of .a lot is a question determinable by its facing .upon a public street or streets. In this case the lot in question faced upon two public streets. The lease required the lessee to keep up the sidewalks in front of the lot. The .building of a sidewalk on. Walnut street by him was not a ¡full compliance of the agreement, if a walk was ordered by •the city on the other front, Its scope is more comprehensive, including more than one sidewalk.

It is claimed however that the parties made, their contract with reference to the sidewalk then existing, and that this was on Walnnt street only, therefore it was not intended to include any sidewalk on Sixth street. The evidence is conflicting to some extent as to the existence of a sidewalk on Sixth street. Sherman testifies that there was a sidewalk of gravel and'coal cinders on Sixth street; that he employed.Bowers to haul the material.for the same. Bowers testifies to the fact that his team hauled the gravel and cinders for the walk, and that there was such a walk constructed along the east front of the lot on Sixth street. William Eahey also testifies to the fact of the walk being made, that he assisted in making it, and that it was made of surface gravel and cinders, two or three feet thick.

Appellant produced several witnesses who testified that they frequently passed along Sixth street, and that they had not seen any such sidewalk there.

In this state of the evidence we think the preponderance is in favor of the existence of a sidewalk on the east front of the lot. Without this evidence, however, we are of opinion that, by a fair and .natural construction of the terms of the lease, the lessee of the premises bound himself to keep up such sidewalks in front of his lot as the city council should require. And the fact that, in describing the premises, they are said to be “fronting on Walnut street twenty-two feet,” is not inconsistent with, and does not negative, the fact that they also front on Sixth street one hundred and thirty-two feet. . ,

This construction seems to us to be also in accord with the equity of the case. This sidewalk was procured to be built through the active agency of the appellant. Through his efforts the city council was induced to order its construction, arid its construction was asked by appellant for the reason, among others, of the great benefit that would result to himself as the lessee of the premises adjacent thereto.

The judgment is

Affirmed.