183 Iowa 715 | Iowa | 1918
The evidence consists: First, of maps and plats showing the location of plaintiff’s property and of the alley in question; second, of stipulations of counsel that plaintiffs are the owners of said property, subject to the lease to the Coliseum Company, that the alley was lawfully established', and that, since the execution of the lease of the property to the Coliseum Company, in 1909, plaintiffs have made no use of the alley as a means of ingress to or egress from said Lots 1 and 3, Coliseum Place; third, testimony showing the location, surroundings, improvement, and use of the property and of other property in its immediate neighborhood; and fourth, testimony of several expert witnesses that, in their opinion, the vacation of the alley had the effect of depreciating the value of Lots 1 and 3, in an amount variously estimated at from $10,000 to $12,000.
We have then, to consider whether, upon the issues
“If the owner still has free access to his property and to the improvements thereon, and his means of ingress and egress are not substantially interfered with, no damages may be recovered.”
In the Hubiell case, supra, the majority opinion, by Gaynor, J., repeatedly emphasizes the proposition that the vacation will sustain an action for damages only where it “substantially interferes” with the free access to the owner’s property. The court was there considering the identical alley and identical vacation involved in the present case, and the opinion is there expressed that, “by the vacation of this alley, there was no substantial invasion of any right of the plaintiffs upon which they could predicate any right for damages. Their egress and ingress have not been substantially interfered with.” Again, it is there said that:
“The vacation of this alley has not affected any substantial right of the plaintiffs of exit from or ingress to their property; that whatever right they have been deprived of * * * is a right to use the alley in common with the general public. * * ';f There .is no substantial evidence of any damages sustained by the plaintiffs. * * * The mere expression of the opinion that the property has been damaged is not substantial proof against the physical fact that no damage has resulted.”
It appears, as we have stated, that this property has a
The effect of this argument is sought to be avoided by the argument that, at some time in the future, the owners may conclude to replace the present building with some other structure, or make use of the premises for some other purpose for which the alley would prove a convenience of substantial value. This feature of the controversy also had consideration by the court in the Ruttell case, supra, and it was held by the majority that the recoverable damages, if any, are such only as are now ascertainable, and that the possibility of other and different uses of the property in the indefinite future are not to be considered. Such is the clear effect of the argument in the principal opinion, by Justice Gajmor. In the concurring opinion by Justice Deem'er, the question is also dealt with in clear and specific terms. It is there said:
“The first question, then, in the case is whether or not plaintiff suffered damage different from that suffered by all people who might use the alley before its vacation. It is not claimed that the alley was actually used for ingress to or egress from the building. The building was not so constructed that it could be entered from the alley, and the only exits and entrances were on Grand Avenue and Locust Street; so that the damages, if any, from the closing of the alley were not different in kind from what they would have been had the first street running north and south immediately west of the block on which the Coliseum is located been vacated. Neither afforded a direct entrance*722 to the building, and the damage in either event was the same as that suffered by the public in general, save in degree. * * * This was the situation when the vacation of the alley was made, and it seems to me the damage, if any, which the owner of the lot suffered was dammuon absque injuria, and that no action would lie to recover damages by-reason of the vacation. * * If damages be awarded in a suit at law, they will be with reference to the present use of the property; although, as the vacation will be assumed to be permanent, both past, present, and future damages may be awarded. But it is damages to the property as it then stands, and not as it might possibly be used in the great future. * * * This for the reason that it is conceded that the legislature had the power to grant municipalities the right to vacate streets or alleys. * * * If, then, one improves with reference to an alley or street, he may in some cases recover damages if it be vacated, and the damages must be based upon the condition of the property when the damage is inflicted, and not upon some possible future use. His acceptance of an easement in the'street and alley is only to the extent that he indicates that he wishes to use it; and after such acceptance he cannot have damages awarded on the theory, that, at some future time, he might want to use it in some other manner. He must take notice that, after such acceptance, the city may conclude to vacate the street or alley, ® and if it does this before he makes the change, it is with his eyes open, and he can be- recompensed only for the damage done his property at the time of the vacation. * * * In tins respect, the case differs essentially from one where physical property is taken.”
We make the foregoing extended quotation from the earlier case touching the vacation of this alley because it states, in clear and unmistakable phrase, the proper rule which we conceive to be applicable to such cases, — a rule which, unless we are to recede from that precedent, neces
These considerations are decisive of the merits of the case, and render unnecessary any discussion of the measure of damages and other questions to which counsel have given attention, and to which we have not adverted.
The judgment appealed from is — Affirmed.