Ulbrecht v. City of Keokuk

Bisi-iop, J. In his petition as originally filed on September 16, 1901, plaintiff claimed damages in the value of the trees cut down, and damages to his lot occasioned by the cutting down of such trees. In said pleading, plaintiff alleged that a verified notice of his claim for damages was served on the defendant city on June 15, 1901, and a copy of such notice is attached. In its material parts necessary to be considered, the notice is to the effect that the cutting of the trees took place on or about May 28, 1901; that defendant also cut down the earth alongside of plaintiff’s property, destroying the sidewalk and changing the grade of the street; that the value of the trees was $150, and the damage to the lot was $50. On November [3] 21, 1901, plaintiff filed what is denominated a supplemental petition, in which he says that by reason of the cutting of the street down below the established grade his lot is left in a condition to be gullied, and for this he asks additional damages in the sum of $100. And on January 30, 1902, plaintiff filed an amendment to his petition, which is not altogether understandable. Therein he says that the work by the city was commenced about May 28, 1901, and continued with intermissions until June 15, 1901; that “ the damages set out in his petition was done as one. job, but was left at different times, and same was not finished until the work was done, after the filing of the petition in this action ; that plaintiff. cannot give the days on which the different parts of the work was done.” Therein he also alleges that the injury set out in his “ amended' petition ” was done “ after the petition in this case was filed, and before the filing of said supplementary petition, and was a •continuation of the work originally done before suit.” 1. Damages: pleadings; limitation of actions. It is conceded that the defendant is a special-charter city, and the demurrer is grounded upon the statute of limitations having relation to such cities. Section 1051 of the Code (being part of the chapter on special-charter cities) provides, in substance, that all actions founded upon personal injury damage to property arising out of negligence or or failure of duty on the part of the city or its officers must be brought within three months from the time of the injury or damage, and not then “ unless a written verified statement of the amount, nature and cause of such injury or damage, and the time when and the place where such injury occurred, and the particular defect or negligence of the city or its officers which it is claimed caused or contributed to the injury or damage, shall be presented to the council or filed with the clerk within thirty days after said alleged injury or damage was sustained.” Accepting the statute as a basis for decision, we think it clear that the [4] demurrer was properly sustained. According to the verified notice given to the city, and which is made a part of the petition, the trees were cut down and the grade of the street changed on or about IVIay 28, 1901. This action was not commenced within three months thereof. If by the amendment to. his petition plaintiff intends to allege that the work which resulted in a portion of the damage of which he complains was done after the time of the service of the notice on the city, still his position is not strengthened, not having served any notice making special reference thereto. Ilis right to maintain action therefor, if considered independent items of damage, must be denied. If considered as continuing damages, or if pleaded in aggravation, then his right to recover must be referable to the notice served June 15, 1901, 'and his action, not having been brought within three months after such notice, must fail. 2. constitutionspecfefcharters; limitation of actions. Counsel for appellant present an argument addressed to the question of the constitutionality of the limitation statute (section 1051) referred to. It is true that under the present Constitution special charters to cities and towns cannot be granted. But all . n , . . . . . special-charter cities were m existence as such when the present Constitution took effect, and it was not intended by the provisions thereof to work a repeal of charters theretofore granted and in existence. Warren v. Henly, 31 Iowa, 31. Now the statute has application to all cities acting under special charter. Such constitute a class by themselves, and the statute has uniform operation, as affecting alike each and every city falling within the class designation. That legislation of this character does not violate the provisions of the Constitution respecting the uniformity of the operation of laws is too well settled to admit of further debate. Among other cases which might be cited, see Haskel v. Burlington, 30 Iowa, 232. We find no error, and the judgment is affirmed.