Patterson v. City of Burlington

McClain, J". — Plaintiffs sue as residents and taxpayers of defendant city, but not as owners of any property to be taken or interfered with or in any way damaged by tbe proposed action of tbe city which they seek to have restrained. As the evidence shows that the proposed improvement constructed as planned by the city will cost less than it would cost to build a retaining wall along the east side of the street and fill the street to grade against this retaining wall, and that the improvement as proposed will widen, instead of narrow, the street as would a retaining wall built within the street limits, we can not see that plaintiffs as taxpayers have any ground" of complaint which justifies them in seeking to interfere with the discretion of the city council in the improvement of this street. 1. Municipal corporations: street improvement: injuction by tax payer. The real grievance seems to be that the city council is causing the retaining wall to be built and the street brought to grade for the accommodation of a street car company desiring to put in a loop near the entrance to a park in order to better accom1 mo(late the public resorting to such park; but it appears that the improvement of the street itself is reasonable and proper for the public use, and that, by an arrangement with the street car company to do the: filling without expense to the city, the total cost of the improvement will be less than it would be if the retaining wall were constructed along the line of the street and within the street limits. Owing to the configuration of the ground, the proposed retaining wall so far as it departs from the line of the street is shorter than would be necessary if it wej’e built on the street line. . [293] 2. Same: acquisition of additional land for streets: irrevocable license. [292] With reference to the claim that the council has no right to expend money in the construction of a wall on [293] property to wbicb the city does not have title, it is enough to say that the statute contemplates the acquisition by • purchase or condemnation proceedings of additional land adjoining a street upon which to construct a. retaining wall. See Code, section 784; Talcott Bros. v. Des Moines, 134 Iowa, 113. It appears that, before ■the council passed a resolution providing for the proposed improvement, the abutting landowner upon whose property the wall was to be constructed in writing granted to the city permission to build the retaining wall on his property as proposed, and this permission was presented to and accepted by the council, so that the city constructing the wall will do so under a license from the abutting owner which when acted upon by the city will be irrevocable, and will confer upon the city the right to maintain said wall in perpetuity as completely as though the right had been secured by condemnation, proceedings. We are unable to discover any equitable grounds on which the pláintiffs are entitled to have the city enjoined from making the proposed improvement, and the decree of the lower court is affirmed.