Farmer v. City of Cedar Rapids

Ladd, G. J. — [323] The grade established by the ordinance of 1875 had never been acted on by the lot owner or the city. It was superseded by that fixed in 1886 long before the plaintiff improved her property. There existed tlien in 1893 but one established paper grade for the street. No physical change had been made in the street [324] prior to 1896j and no alteration in plaintiff’s property with reference to the street from the time of the construction of the house, in 1871 or 1872, until the foundation was placed, in 1893. The situation is this: After the grade was established by ordinance, tbe plaintiff, instead of improving so as to conform to it, so did according to the physical grade of tbe street. Damages owing to change in street grades are purely statutory. Creal v. City of Keokuk, 4 G. Greene, 47; Russell v. City of Burlington, 30 Iowa, 262. And even under tbe statute tbe land must be improved conformably to the' established grade, and tbis physically changed, before recovery may be bad; for a party could not be injured by a mere paper alteration of tbe grade. Tbis appears from tbe reading of section 785 of the Code: “When any city or town shall have established tbe grade of any street or alley and any person shall have made improvements on tbe same or lots abutting thereon, according to tbe established grade thereof, and sucb grade shall thereafter be altered in sucb a manner as to damage, injure or diminish tbe value of sucb property so improved, said city or town shall pay to tbe owner of tbe property tbe amount of sucb damage or injury.” Tbe grade contemplated can be established only by ordinance, or other legislative action by tbe city council. Kepple v. City of Keokuk, 61 Iowa, 655; Blanden v. City of Ft. Dodge, 102 Iowa, 441. As said in Dalzell v. City of Davenport, 12 Iowa, 439 : “It was tbe intention of tbe legislature to distinguish between those cases where tbe owner bad built or made improvements according to tbe established grade, and where be bad not. If tbe owner bad done no act upon tbe faith of tbe continuance of tbe grade as established, there would seem to be no great impropriety in denying him any possible damages consequent upon tbe change. When, however, be builds or makes improvements according to tbe grade, — having acted, as he bad a right to do, upon tbe supposition that tbe grade would re [325] main, unchanged, — his property is brought within the meaning and terms of the statute.” In Ressegieu v. City of Sioux City, 94 Iowa, 543, the lot owner built according to the grade established, — four or five feet above the surface of the street. Subsequently an ordinance was adopted changing this to the surface, which was one foot above that when the previous ordinance was adopted, and the street was permanently improved in conformity therewith. It was held that “he had the right to assume that when the street was perma- • nently improved it would be on the line ofthe grade the .city had thus established,” and he was allowed damages. It seems to us that case is decisive of this. If the lot owner may build in reliance on the street’s being brought to grade, he cannot at the same time rely on its remaining as it is, notwithstanding the establishment of a grade. Indeed, the fixing of the grade by ordinance is preliminary to the improvement of the street, and is an assertion on the part of the city to lot owners that such improvement will be made .according to the line described. The statute simply awards damages sustained by any who have acted in reliance on this assurance, and, because of the city’s subsequently changed plans, been injured. The plaintiff, in what she did, disregarded the grade fixed by the ordinance, but the city improved the street precisely as proposed. All that was decided in Stritesky v. City of Cedar Rapids, 98 Iowa, 373, relied on vby appellant, was that the city had nothing to do with the physical change in the street, and that the street railway company, if any one, and not the city, was 'liable. Possibly there might be some advantage in permitting property owners to improve •according to the physical grade recognized by the city, instead of that established by ordinance. -But there are two insurmountable objections to the adoption of such a rule. It would involve amending' the statute quoted, and the overruling of numerous decisions of this court. As we are not inclined to do either, the judgment of the district court must be REVERSED.