City of Marshalltown v. Forney

61 Iowa 578 | Iowa | 1883

Day, Ci-i. J.

1 appeal to courtfcertidenfe.eT1~ — I. The certificate of the trial judge states “that the the above and foregoing evidence is all that was offered, adduced or introduced on the trial.” The appellee files an amended abstract, in which it is stated that the certificate employs the words, “offered, adduced and introduced.” The appellant denies the correctness of the amended abstract, and insists that the original abstract is correct. We do not find any transcript on file, and hence have no means of determining the dispute.

If it should be conceded that the certificate is in the form claimed by appellee, we think it is sufficient, under the provisions of section 2742 of the Code.

2 lying.01 certl" II. It is asserted in the amended abstract that the certificate was not signed during the term at which the cause was nor during the next vacation, and that, therefore, it was not signed in time. It is asserted that the certificate was hot signed till the fifth day of December, and was not filed until the eighth day of December, 1881. The decree was entered on the twenty-sixth day of November, 1881, the appeal was taken on the thirteenth day of January, 1882, and the cause was submitted on the twelfth day of December, 1882. Section 1, Chapter 35, Laws of 1882, which is a substitute for section 2742 of the Code, provides that the evidence may be certified at any time within the time allowed for the appeal of the cause. Section 2 of the act provides that it shall apply to all causes not already submitted. Under this chapter, the certificate was executed in time.

Some other objections are raised in the amended abstract to the certificate, but, so far as they are concerned, the abstract does not purport to state facts shown by the record, but relies upon facts dehors the record. The objections to the certificate are not tenable.

3 cities and 'Í?onnofIney: ultra vires. III. It is insisted that the city has not in fact vacated the alley, because it was ultra vires to devote an alley to the Pm’Pose of an opera house to be owned by an individual. Section 464 of the Code confers miinicipal corporations power to vacate streets and alleys. In Gray v. The Iowa Land Co., 26 Iowa, 387, it was held that a municipal corporation may rightfully and constitutionally order the'vacation of a street, and that the vacation puts an end to the fee in the'public, as well as the public use. See, also, Pettingill v. Devin, 35 Iowa, 344, and Day et al. v. Schroeder, 46 Id., 546, for cases in which the right of a municipal corporation to vacate a street ivas recognized. Now, if the vacation of a street puts an end to the public use, it certainly cannot affect the power of the city to vacate, that the vacation was made for the purpose of devoting the vacated street or alley to a private use. If the power to vacate is otherwise rightfully exercised, and no private rights are injuriously affected, it is not material what object is intended to be promoted by the vacation.

a practice court^matotíiVconsidereti’ IY. It is claimed that the city has not vacated the alley because it has not pursued the method prescribed in section 562 of the Code. It is a sufficient answer to this objection that the relief is not ashed in the petition upon this ground. The only allegation in the petition respecting the ordinance is as follows: “Your petition avers that it had no power or right to make said ordinance; the same was ultra vires and void from the beginning.” This is clearly an allegation of a lack of power in the city to pass the ordinance, and not an allegation that a power possessed by ‘ the city had been irregularly or improperly exercised. If any issue had been made as to the regularity of the manner in which the ordinance was passed, it may be that the defendant would have shown that all the provisions upon the subject had been strictly pursued. It clearly does not affirmatively appear that any provisions of the statute were disregarded.

5. cities and cattn| alley: subseqent; m cm equity, Y. It is claimed that the vacation was upon condition that the defendant erect an opera house, worth not less than $20,000; that he has not erected such an opera house, and that, therefore, the vacation has never taken effect, and the defendant’s erection consti-j^tes a nuisance. Tim conditions mentioned in the ordinance are regarded by appellee as conditions precedent. If the conditions are conditions precedent, then the city was guilty of the folly and insincerity of conferring upon the defendant a right which he coul$ enjoy only upon the performance of a condition which was illegal, and from the performance of which he could at any time have been prevented by injunction. Tor, if the ordinance did not vacate the alley, the defendant was guilty of a nuisance, whenever he entered upon the alley for the purpose of erecting the building and performing the condition. The ordinance, taken together, can properly be regarded in no other sense than as constituting a vacation of the alley, and conferring upon the defendant the right to erect an opera house thereon, subject to the condition that he should forfeit the rights conferred upon him if he should fail, within eighteen months, to erect thereon, and on the adjacent lots, an opera house of the value of at least $20,000. The condition is a subsequent condition, which, if not performed, operates to defeat vested rights. Now, it is to be observed that in this case equitable rights are invoked. “It is a universal rule in equity never to enforce either a penalty or a forfeiture. Therefore, courts of equity will never aid in the divesting of an estate for a breach of covenant, or a condition subsequent, although they will often interfere to prevent the divesting of an estate for a breach of covenant or condition.” 2 Story’s Equity, § 1319, and authorities cited. See, also, 4 Kent’s Com., 130. The opinion in the case of Pacific Railroad Company v. Leavenworth, 1 Dillon, 393, cited and relied upon by tbe appellee, is based upon the fact that the ordinance of the city of Leavenworth, and the contract between it and the plaintiff, both authorize the city to resume possession of the street, upon the failure of the plaintiff to perform the stipulated condition. The other authorities cited by appellee upon this branch of the case have no special bearing upon the point now under consideration. Whether the plaintiff might maintain ejectment, or an action at law for damages, is a question which the record does not present. We are clearly of opinion that the plaintiff cannot, in an action in equity, have the defendant’s building destroyed as a nuisance.

Reversed.