139 Iowa 732 | Iowa | 1908
The plaintiff is the owner of lots 8 and 9 of a certain block 2. One Connell is the owner of lots 6 and 7 in the same block. These lots all lie east and west facing east on Fourth avenue, and being consecutively numbered from south to north. The property of the plaintiff, therefore, lies north of the property of Connell. However, between Connell’s lot 7 and the plaintiff’s lot 8 there is an alley sixteen feet wide. Both properties are used for residence purposes, and are occupied by the respective owners. Plaintiff’s sidewalk is a temporary plank sidewalk lying upon the natural surface of the ground. A permanent grade has been established for Fourth avenue, but the street has not been brought to such grade except in part. As we understand the record, it has been brought practically to grade opposite the property of Connell, and Connell has built a permanent cement sidewalk conforming to the established
After a hearing on the merits the trial court entered the following decree (omitting preliminaries) :
And now, to wit, on the 18th day of March, 1907, the same being the fourth day of said term of said court, the court having examined the pleadings, heard the evidence and the arguments of the attorneys for the re
It is therefore ordered, adjudged, and decreed that the defendant has the right to regulate the grade of the sidewalk in question, and to relay its south end and bring it to the same grade as the crossing over the alley with which it connects, and make the passage from the one to the other smooth, so that there will be no step from one to the other, or to require the plaintiff to do such work, except that the defendant shall do the grading and prepare the earth foundation therefor without expense to the plaintiff, and if after notice to the plaintiff, hereinafter provided for, the plaintiff neglects or refuses to relay or reconstruct such south end of said walk, on the grade so prepared by the defendant, the defendant may do such work, and tax the cost thereof to the plaintiff and his, said property, as provided by law, not exceeding, however, 40 cents per linear foot on such reconstructed walk; that before proceeding with such work the defendant shall by ordinance or resolution prescribe what work shall be done, how it shall be done, and the time when it shall be done, and shall give the plaintiff written notice thereof, and of the time when it will have the grade for such work completed; and if the plaintiff shall neglect or refuse to do the work within the time fixed therefor, the defendant may do it, and may tax the cost of all thereof, except the grading and preparing the earth foundation therefor, to the plaintiff and his said lots, in the manner provided by law, not exceeding, however, 40 cents per linear foot of such reconstructed walk. It is further ordered, adjudged, and decreed that the injunction ordered and issued in this case be, and the same is, hereby dissolved. And it is hereby ordered, adjudged, and decreed that the plaintiff have and recover of and from the defendant one-half of the costs herein, said one-half being taxed at $65.05,
III. Plaintiff urges that the town council was premature in its demands upon him, and that it had not complied on its own part with those legal formalities imposed on it by law as preliminary to, and as to the method of, exercising the power conferred on it by the statute. On this proposition the trial court found substantially with the plaintiff, as indicated in the first division hereof.
Except in the respects stated, the decree entered below is sustained. It will be modified in this court to the extent that the formal order dissolving the injunction will be stricken out, and the injunction will be ordered to stand, as indicated in this opinion, and the defendant will be decreed to pay all the costs of the lower court, without prejudice, however, to the right and duty of the lower court to determine any question properly arising upon motions to retax specific items on grounds con