Chrisman v. Brandes

Sherwin, J. It is apparent from the statement of this case that the controlling question involved herein is whether the board of supervisors had jurisdiction under the statute to vacate the streets and alleys in controversy. If they had statutory authority,' another question which is made by the record is whether they had properly before them the parties necessary to a valid vacation of such streets and alleys. Some other questions are presented for determination which will be considered later on. 1. Highways: power of supervisors to vacate. We think there can be no serious question as to the power conferred on the board of supervisors relative to the streets and alleys involved in this controversy. It must be remembered that they were created by plat prior to the creation of the corporation. When the land was platted, it was simply a government subdivision, and was not within the limits of any municipality, and, such being the case, it is clear that, during the time between the filing of the plat and its incorporation into a municipality, the streets and alleys provided for in the plat were under the control of the board of supervisors of the county, if they were used by the public, and it is the contention of both the appellants and the appellees that they were so used. By Code, section 422, subdivision 16, the board of supervisors is given power to discontinue any State or territorial highway, and by subdivision 17 thereof to lay out, establish, alter, or discontinue any county highway heretofore laid out or hereafter to be laid out through or within the county. By section 751 of the Code, cities and towns are given power to establish, lay out, open, widen, vacate, etc., streets and alleys. And, from these two sections, together, it is seen that the power of establishing and vacating roads other than streets and alleys in municipalities is lodged in the board of supervisors of the county, and that the power to vacate streets and alleys is in the city councils of cities and towns. Code, section 48, subdivision 5, provides that “ the words highway and road include public bridges and may be held equivalent to the [438] words county way, county road, common road and State road,” and by section 1507 of the Code it is provided that “ all public streets of villages are a part of the road.” From a consideration of these various statutes, it is manifest that, when the plat of Manawa Park was filed, its streets and alleys became county roads, within the definition of the statute, and were subject to the jurisdiction of the board of supervisors; and while it is probably true that, after the incorporation of the town of Manawa, the control over its streets and alleys passed to its city council, when the incorporation was abandoned or was put out of existence by a decree of the court, the control of its streets and alleys reverted to the board of supervisors, and that said board was the only tribunal that had jurisdiction over them, and the board could do with them whatever it could do with the other highways of the county similarly situated. See on this subject, Maywood Co. et al. v. Village of Maywood, 118 Ill. 61 (6 N. E. 866); Chrisman v. Omaha & C. R. R. Co., supra. • The appellees contend that the board of supervisors have no jurisdiction under the statute to vacate streets and alleys, claiming that they can only be vacated under the provisions of Code, section 920. This section is clearly not applicable to a case of this kind. It provides, in substance, that whenever the owners of any tract of land which has been platted into town lots, and the plat of which has been recorded, shall desire to vacate the plat, or a part thereof, certain proceedings shall be had; and it further provides that, if, at the hearing of the petition, it shall appear that all the owners of lots in the plat or a part thereof to be vacated desire the vacation, and there is no valid objection thereto, a decree shall be entered vacating such portion of the plat and the streets, alleys, and avenues therein. It is manifest that the vacation of all or a part of a plat is the subject-matter of this section of the statute, and that the vacation of the streets and alleys in such plat is a mere incident thereto. There can be no vacation of all or a part of a plat without the vacation of all [439] or a part of the streets and alleys, and the vacation of sneh streets and alleys under this section was not intended in our judgment to deprive city councils or boards of supervisors of the powers conferred upon them relative to the vacation of streets and highways. Section'920 does not refer to, or by its express terms attempt to limit, the power of city councils or boards of supervisors in the vacation of streets or highways, and we think it must be held that the section provides an additional means for their vacation when it is sought to vacate the entire plat or a part thereof. Counsel for appellees contend that, as these streets were created by the plat for Manawa Park, they were parts of the plat, and can be vacated only in the manner provided by section 920; but to so hold would be to repeal the powers conferred upon the board of supervisors by section 422 of the Code, and upon city councils by section 751 thereof, and it is a familiar rule that statutes will never be repealed by implication, unless it is found to be absolutely necessary. This necessity does not exist in the present case. Furthermore, in Chrisman v. Railway Co., supra, it was held that the vacation of some of the streets in Manawa Park by the board of supervisors was legal, and it was sustained. 2. Same: notice: appearance. The appellees urge that the action of the board of supervisors cannot be sustained, because some of the abutting owners, other than themselves, were not served with notice of the petition for the vacation of the streets and alleys; but their contention is settled adversely to them in Ross v. Board of Supervisors, 128 Iowa, 427. Of course, where the parties appeared, the board had jurisdiction, whether there had been a service of notice or not. 3. Highways:vested rights: discontinuance. It is claimed that the owners of lots in Manawa Park acquired a vested interest in the use of these highways which could not be disturbed by any action of the board ox supervisors; but there is maniiestly jn contention. While the principle would be applied to a controversy between private individ [440] uals, it has no application where it is sought to procure a statutory vacation of a highway through a tribunal given power by the statute to determine such questions. Public highways are created by statute either directly or through delegated power, and it is manifest that they may be discontinued by the same power that created them, and that no individual can acquire such vested rights against the State as will prevent the discontinuance of a particular highway. The position of the appellees is, in effect, that they have such a vested right in the maintenance of the streets and alleys in question that the State itself, the creator thereof in the interest of the general public, cannot provide for the vacation of such streets in opposition to the wish of the appellees; but, as we have seen, there is no merit in this contention. Furthermore, if it were to be conceded for the purpose of this case that plaintiffs have a vested interest in the maintenance of such street and alley access to lake Manawa, the record clearly shows that there are other ways by which they may reach said lake, and, such being the case, they cannot insist upon having the ways in controversy kept open for their accommodation. Lorenzen v. Preston, 53 Iowa, 580. The appellees claim that there was fraud in procuring the signatures to the petition for the vacation of these streets and alleys, but there is nothing in this claim. 4. Vacation of highways: res judicata. It is also said that the appellants are precluded from making an application for the vacation of these streets'and alleys on account of the adjudication in the Chrisman case, supra. The contention is evidently based upon the theory that the injunction in that . , . „ - case restrained the railway company from vacating, or attempting to vacate, any of the streets referred to. There was .no adjudication in that case which would deny the appellants herein the right to proceed under the statute for the vacation of such streets and alleys. It only held that the railway company, as the owner of abutting property, could not itself vacate the streets. It did not hold that they [441] might not- be vacated in the interest of the public, and hence nothing therein denies the appellants the right, to proceed under the statute. The expediency of vacating these streets and alleys was a question for the board of supervisors, and is not reviewable in this action. Tiedt v. Cartensen, 61 Iowa, 334; Spitzer v. Runyan, 113 Iowa, 620. For the reasons stated, the trial court was in error, and its judgment must be, and it is,— Reversed.