66 Iowa 419 | Iowa | 1885
The plaintiff is the owner of blocks 3 and 6 in Cook, Sargent & Downey’s addition to Iowa City. He has owned most of the lots in these blocks for many years.
The plaintiff, being the owner of the whole of the' two blocks, in August, 1882, executed, acknowledged, and caused to be recorded, an instrument in' writing declaring that portion of the plat embraced in blocks 3 and 6, and the intervening streets and alleys be vacated. Section 564 of the Code authorizes any part of a town plat to be vacated by the proprietors thereof, pursuing the course adopted by the, plaintiff in this case, “provided such vacating does not abridge or destroy any of the rights and privileges of other proprietors in said plat;” and section 565 provides that when any part of a plat shall be vacated, the proprietors of' the lots so vacated may inclose the streets, alleys and public grounds adjoining said lots in equal proportions. The question of fact tried and determined by the district court was whether any of the rights and privileges of others were abridged or destroyed by the vacation of the street between the blocks. The evidence shows very pffainly that the court was correct in holding that no one was prejudiced by allowing it to remain inclosed.
II. The defendants in their answer set up, in substance, that on or about December 8, 1882, the city council of Iowa City had under consideration the question as to whether the fling and recording of the written instrument was a valid and legal vacation, and whether the city still had the power to open the streets and alleys in question to public use and travél, and said council judicially determined that said vaca
It is true, the city council has the “power to lay off, open, widen, straighten, narrow, vacate, extend, establish and light streets, alleys, public grounds, wharves, landing and market places, and to provide for the condemnation of such real estate as may be necessary for such purposes,” (Code, § 464;) but the plaintiff had express authority, conferred by statute, to vacate the plat, and, having done so, the city council had no authority to make an’ ex parte judicial .determination that the plaintiff’s acts were void. The order of the city council, that the street should be opened, involves the question whether there was any street in existence to be opened. Before this order was made the vacation was hied and recorded, and the rights of the parties fixed, subject only to an inquiry in the courts whether or not the rights of others were injuriously affected by the vacation.
Affirmed.