161 Iowa 215 | Iowa | 1913
The plaintiffs have title, as trustees, to lot 3 and the south thirty-two and one-half feet of lot 2, in block 1, East Des Moines, now within the limits of the city of Des Moines, but several blocks from the business portion of the city. These lots are about one hundred twelve and one-half feet on First street, running north and south, and lot 3 lies -along Des Moines street on the south, which commences at a narrow strip of land along the east side of the Des Moines river, known as “Water Power Place,” and runs to the east. “Water Power Place” also forms the west boundary of the lots. That part of Des Moines street west of First street is a cul de sao, and is eighty feet wide and one hundred and twenty-four feet long on the north side and two feet more on the south side. It is neither curbed nor paved. There are four small dwellings on the lots, but none facing Des Moines street, and there is no alley along the north line of the lots. The streets were dedicated by the owners of the land in platting it into lots and blocks in 1854, and afterwards confirmed by them in 1859, and have been traveled for more than twenty years. On October 2, 1912, the city council of Des Moines passed an ordinance in words following:
Section 1. That there be and is hereby vacated all of that part of Des Moines street in the city of Des Moines bounded as follows: Beginning on the west line of East First street at a point sixteen (16) feet south of the northwest corner of East First street and Des Moines street; thence west on a line parallel with the north line of Des Moines street one hundred (100) feet; thence south thirty-one (31) feet; thence east one hundred (100) feet to the west line of East First street; thence north forty-one (41) feet to the point of beginning.
Sec. 2. That portion of Des Moines street by section 1 hereof vacated be and the same is hereby dedicated to the use of the city of Des Moines for the úse and occupancy of a public yard. . .
Prior to this the city council had resolved:
That the Sup. of the Dept, of streets and public improvements is hereby authorized to construct a suitable storage and*218 warehouse building on Des Moines street between East First street and the Des Moines river, the cost of the same not to exceed $1,000.00.
And, notwithstanding plaintiff’s protest, the department of public streets and improvements proceeded with the construction of a building with north wall nine feet high and the south wall 12 feet, with gravel roof, to be used in storing wagons, carts, flushers, and other tools of the department. .The plat indicates the situation:
The rule is well stated in 2 Elliott on Roads and Streets, section 1182: “Whether it is expedient to discontinue a highway is a question for legislative decision, and when the authority to discontinue is delegated to local officers, and no restrictions are placed upon its exercise, the officers are invested
The subject was touched in Spitzer v. Runyan, 113 Iowa, 619, where, in upholding the vacation of a street for depot purposes, the court, speaking through Waterman, J., said: “We must look further, then, for the statutes that govern. Section 751, among other powers given, authorizes cities and towns to vacate streets and alleys. It is said by appellants that this power can be exercised only for some public purpose, and that the purpose here is not public. While the power to vacate is not arbitrary, and may to some extent be controlled by the courts, the cases are exceptional where such interference is authorized. McLachlan v. Town of Gray, 105 Iowa, 259. See, also, 2 Dillon, Municipal Corporations, 666. We have held that a city council may divert the ground covered by an alley which is vacated from public to private use by granting it to an individual. Dempsey v. City of Burlington, 66 Iowa, 687. Likewise, that a city may vacate an alley for the purpose of allowing it to be devoted to private use. City of Marshalltown v. Forney, 61 Iowa, 578. We do not feel called upon here to go to the extent of the doctrine announced in these eases, in order to decide the issues before us. Ostensibly, the vacation and conveyance of the streets and alleys in question were for the public good. Where no fraud is charged, the determination of such a question is within the discretion of the council, and not subject to control by the courts. ”
In Smith v. McDowell, 148 Ill. 51 (35 N. E. 141, 22 L. R. A. 393), the vacation of a street open and used by the public for the occupancy of an individual was denounced as illegal, the court, after reviewing the authorities, saying:
The municipal corporation holding and controlling its streets in trust for the use of the general public, without power of converting them to any other use, it follows, necessarily, that the right to ‘vacate the same’ is to be exercised only when the municipal authorities, in the exercise of their discretion,*221 determine the street is no longer required for the public use or convenience. . . . It is not necessary to here discuss or determine whether the courts will in any case, interfere to prevent the abuse of municipal discretion in the respect mentioned for the reason that it is not sought to restrain the exercise of such discretion, but to prevent the perversion of their power to the promotion of private interests, in violation of the trust upon which the streets are held. ... In this case there is no pretensé that the public interests required the vacation of any part of the street, or that any public interest, local or general, would be subserved by the proposed vacation. The ordinance, professedly and in terms, proposed to destroy the public right and use, for the sole purpose of enabling a private person to occupy a portion of the street with a permanent structure, appurtenant to his building abutting upon the street. This the municipal authorities are not empowered to do, and their action was ultra vires and void.
In Horton v. Williams, 99 Mich. 423 (58 N. W. 369), the Supreme Court of Michigan declared the proceedings for the vacation of an alley invalid, saying:
There is another and fatal objection to the proceedings taken by the common council. It shows upon its face that the inducement for the council’s action was the division of the property attempted to be acquired by the vacation between the defendant and the city. The council was set in motion by the defendant, whose apparent motive was to procure a valuable frontage for his own use, and in order to secure it he proposed to the council to divide the land acquired. It was held in Shue v. Commissioners, 41 Mich. 638, (2 N. W. 808), that every road must be opened or closed upon its own merits. ‘It is easy to see,’ says the court, ‘how great mischief and wrong might be done by uniting several different schemes. Combinations of separate interests are not allowed.’ The affidavits of the five aldermen who voted for the resolution of vacation appear in this record; and, while they depose that the alley was unsightly, they also say that the city would thereby acquire a valuable property interest in the way of a city hall and engine house, without expense to the city. The same motive might suggest the vacation of any street. The advantage which the public derives from the discontinuance of a way must arise from the vacation itself, rather than from the use*222 to which, the property is put, or from the fact that the city, through a deal with the individual specially interested, is to have an interest in the property acquired by such vacation. A city cannot barter away streets and alleys; .nor can it do indirectly, by invoking its power of vacating ways, what it cannot do directly. Streets and alleys are not to be vacated at the instance of individuals interested only in the acquisition of the vacated property, and the exercise of legislative discretion in such matters must, at least upon the face of the record, be free from affirmative evidence that such discretion was invoked for individual gain, and its exercise influenced by an offer to divide the property acquired.
There was little or no travel on the portion of the street below First street, and this was to and from the rear of the lots in hauling coal and the like for the use of tenants. A space sixteen feet wide on one side of the part vacated and twenty-three feet wide on the other was left, through which access to the back end of the lots might be had for these and other like purposes. Neither ingress nor egress from First street was interfered with. The thought of the city seems to