Blanden v. City of Fort Dodge

Ladd, J. 1 2 [443] I. Three resolutions were adopted July 5, 1892, by the unanimous vote of the city council. The first resolution orders a grade to- be established on Central avenue, and the committee on streets and alleys is authorized to employ a competent engineer to establish such grade. The second and third resolutions provide that Central avenue shall be guttered and curbed .on both sides, and a sidewalk laid, at the expense of the abutting property owners. The first resolution is relied on, but can only be construed as 'directing a survey and measurements preparatory to the establishment of the grade. The part of the resolution involved is: “That a permanent grade be, and the same is hereby, established on Market street in said city, except where already established; and the committee on streets and alleys is hereby authorized to employ a competent engineer at once to establish said permanent grade as above described.” Market street is now Central avenue. Under the ruling in Kepple v. City of Keokuk, 61 Iowa, 653 (17 N. W. Rep. 140), such a grade can only be established by an ordinance or other legislative action. -It is there said: “Establishing a grade does not mean the actual lowering or raising of the surface of the street. It means the fixing of a base line, or plane of reference, and certain measurements from that plane, •* * * We think [444] the establishment of a grade means the passing of an ordinance, or other legislative action of the council of the city, prescribing and fixing grade lines to which the surface shall be brought when the street shall be improved.” The resolution simply provides that such grade shall be established in the future, and the only authority given the street and alley committee is the employment of a competent engineer to make the survey and measurements, necessary for the accomplishment of such purpose. The ordinance of October 4 establishes the grade provided for in this resolution. No order was made by ordinance or otherwise requiring the. raising or lowering of the streets, or the removal of .the earth or trees. This could only be done when directed by an affirmative vote of two-thirds of the city council. Code, section 465. The city must exercise its power in the manner prescribed by the statutes, and when a street is cut down without so doing, it is liable for the injury, if any, resulting to the abutting property owners. Trustees of Diocese of Iowa v. City of Anamosa, 76 Iowa, 538; Meinzer v. City of Racine, 74 Wis. 166. The demurrer to the third count was - properly sustained. 4 II. Ordinances passed by the city in 1869 and 1873 prohibited the planting of trees where those of plaintiff were growing. The court directed the jury to take into consideration the removal of the trees if planted before that time, but not to do so if planted thereafter. Appellant says that there is no testimony upon which to submit whether the trees were planted before the ordinance of 1873. Berry, the son of plaintiff, says they were planted in 1875. Kir elm er testified he had passed the premises every day since 1866, and thought the trees were planted in 1868. The question, then, was properly submitted. It is also insisted that the city had the right to remove [445] the trees because they were a nuisance, and obstructing travel;, but they were not removed for this reason, and there is no evidence tending to show that they in any way obstructed travel, or interfered with the proper use of the streets; 5 III. The defendant pleaded an estoppel based upon conversations between the members of the city council and Colonel Blanden, husband and agent of plaintiff, on the ground that the improvements were made by reason of his request and consent. The record fails to show any request for the making of the improvements, or consent that they should be made. It does show, however, that Colonel Blanden was very anxious to avoid the destruction of the shade trees growing on the west and north of the lots. ' He consulted with the members of the city council with this end in view, and urged them to make as little cut in the street as possible, and allow him to lower the trees. When, given to understand that he must either lower those on the north, or they would be taken out after examining them he' said,. “Take them out.” He indicated that he could stand a cut of two or two and one-half feet, but that made was much more. He asked that Tenth street be not cut down till spring, so that he might lower the trees there after the ground had frozen, and that, to enable him to do this, the work, when done, be completed at one time. At another time, when the work was being done, he said, being spoken to about an injunction: “Gro on, and do the best you can; that’s all. When I get ready to serve an injunction, you will know it.” The. connection in which this language was used is not shown, but, when considered with the other evidence, it can only be understood as meaning that he desired them to do the best for him they could, for this was what he was striving for at all times. The evidence conclusively shows that he did [446] no more at any time than to express a choice or election as to methods in doing the work. It utterly fails to show that the .excavations were made on the strength of any request or consent of Colonel Blanden. The court rightly withdrew this evidence from the consideration of the jury, and refused to submit the issue of estoppel. IV. Ordinance No. 165, adopted in June, 1892, did not repeal ordinance No. 20, prohibiting trees outside the curb line, or more than one foot from 'the curb line in the inside. The space between the outside of the sidewalk and the curb line might be graded and parked as provided in the former ordinance, but in doing so trees can only be planted within one foot from the curb line. — Affirmed.