115 Iowa 734 | Iowa | 1901
The plaintiff’s property abuts the east and west alley between Cherry and Vine streets in the city of Des Moines. In 1881 the city granted to the defendant’s assignor the right of way “to lay down a single or double track, with side tracks,” etc., on this and other public alleys and streets, “upon the express condition that the injury to property abutting upon the streets and alleys upon which such railway track is proposed to be located or laid down shall be ascertained at the time and in the manner provided by the statute of this state.” The defendant proposed to construct a side track near the south side of this alley, and on the 22d day of March, 1894, entered into an agreement with plaintiff containing these provisions: First, “The parties of the first part consent to the construction and operation of said track upon said alley, and near the south line
Did the vacation of the -alleys become “necessary,” within the meaning of- the contract? The answer to- this inquiry depends' largely upon the meaning to be accorded that word. It cannot be said that plaintiff’s consent precluded the necessity of vacating, nor, on the other hand, that it was essential thereto. The city had the absolute power to vacate alleys, regardless of the wishes or acquiescence of abutting owners (section 751, Code; McLachlan v. Town of