146 Iowa 313 | Iowa | 1910
The plaintiff was the owner of property situated on ilawkeye Street, in Nora Springs, Iowa; such street being the main street of the town. His property fronted west, and along the west end thereof there was a plank sidewalk ten feet wide. There were four or five small cottonwood trees in the street in front of his premises, all situated within the plank walk, and about a foot from the outer edge thereof. • On the 5th of June, 1907, the city council of the town passed an ordinance providing for a cement walk along this property. Said ordinance contained the following provision: “That the side walks shall be. built and constructed within thirty days after notice to build and construct from the street and alley committee of the town of Nora Springs has been served on the owner, his agent or occupying tenant of the property abutting that portion of sidewalks to be constructed, and if not built and constructed as required within thirty days the town may cause such sidewalks to be built and constructed and assess the cost thereof to the abutting property owner.” No notice to build the walk was ever served on the plaintiff, his agent, or occupying tenant as provided in said ordinance. Nor was any specific order given for the construction of the walk until early in October of the same year. On the 12th day of July, 1907, howevér, the council adopted a resolution to the effect that the trees in the walk in question be removed. Of this action the .plaintiff had notice, and immediately upon receipt of same took steps to secure a
Nor did the resolution of July 12th confer any authority for his act. It was necessarily based on the ordinance, and it was not adopted as provided by section 684 of the Code. It was not preceded by a notice to the plaintiff and a failure on his part to construct the walk. The resolution did not purport to provide for the construction of the walk, nor for the removal of the trees for that purpose. It did not direct or authorize the defendant to remove them, and, except as he assumed such power as a member of the committee on streets, he had no authority to touch the trees. There is no evidence tending to show that they were in fact an obstruction to the
That the defendant was not acting with authority we think is beyond question, and that he acted in bad faith we think is fully established by the evidence. He was the owner of a livery barn on one corner of the same block, and the trees in question somewhat obstructed the, view of his barn, and, as he said, injured his business. He was very anxious to have the trees removed and evidently determined to cut them down before further action could be taken by the council, for he had shortly before been advised by a brother councilman to let them alone. If he had been acting with valid authority from the council, it may be that his motive would be immaterial, but we need not now determine that question. An act without authority and with a bad motive is never sustained by the courts.
We think the judgment right, and it is affirmed.