Barr v. City of Oskaloosa

Day, J. 1. highway: damages. ‘ I. The plaintiff’s claim for damages is based principally upon a want of power of the city of Oskaloosa to vacate the street in question. The ordinance of vacation was passed on the 4th day of August, 1871, and is as follows: “Be it ordained by the city council of the1 city of Oskaloosa, Iowa, that all that portion of Kossuth street in White’s addition be and the same is hereby [278] Vacated1; provided1, that John "White conveys the land 01-ground heretofore occupied by Kossuth street to- the Central Railroad Company of Iowa; provided, further, that all the provisions of an ordinance heretofore passed, granting to said railroad company the right of way along and over said Kossuth street, are carried out by said railroad company; and provided, further, that the depots of said railroad company be located at the same point, on the line of said road, between Harrison and High streets.” The-city of Oskaloosa was incorporated under the general incorporation law, chapter 51, Revision of 1860. Section 1064 of the Revision confers upon any municipal corporation organized under the provisions of that chapter power to lay off, open,'widen, straighten or to narrow "or vacate streets, alleys, public grounds, wharves, landing places and market places. This section clearly confers upon the city the power exercised in this case; and for an exercise of this legal right the city cannot be made to respond in damages. We have held that the vacation of a highway does not take from an individual residing thereon his property either for public or private use, and that he cannot recover damages therefor,' although he may sustain inconvenience and loss therefrom. Brady v. Shinkle, 40 Iowa, 576; Ellsworth v. Chickasaw County, Id., 571. In Pettingill v. Devin, 35 Iowa, 344, the city charter provided for compensation whenever property was injured by the vacation of a street. » . pon^anyT Capjagps, II. Many authorities have been cited by appellant respecting the right of the owner of a lot abutting upon a public street to recoyer damages for such use of the street by a railroad as essentially deprives the' street of |tg ordinary character of a highway. We do not deem it necessary to enter upon this question or to attempt a review of the many cases cited, some of which seem to be in conflict with the prior decisions of this court. It is not claimed that the plaintiff in this case owned the fee in the street; upon the vacation of the street no interest reverted to him. The construction of the railroad over the property in question did not appropriate any property belonging to plain [279] tiff, or any property in which, after the street was vacated, he had any interest. Whatever.inconveniences he may suffer.-by the construction of a railroad over the property of others, no carelessness or negligence in such construction appearing, are injuries for which the law does not undertake to make compensation in damages. We think'tke judgment of the court below should be Affirmed. Seevers, Ch. J., having been of counsel, took no part in this decision.