Braden v. Board of Supervisors

157 N.W.2d 123, 261 Iowa 973, 1968 Iowa Sup. LEXIS 793
CourtSupreme Court of Iowa
DecidedMarch 5, 1968
DocketNo. 52881
StatusPublished
Cited by16 cases

This text of 157 N.W.2d 123 (Braden v. Board of Supervisors) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braden v. Board of Supervisors, 157 N.W.2d 123, 261 Iowa 973, 1968 Iowa Sup. LEXIS 793 (iowa 1968).

Opinions

Rawlings, J.

Each plaintiff appealed to district court from denial of damages allegedly resulting from defendant-board’s Code chapter 306 order vacating bridge portion of local secondary road. Both cases were consolidated for purpose of submission. Defendant filed motions to dismiss and for adjudication of law points. Trial court overruled motions to dismiss. With leave granted (rule 332, R.C.P.), defendant takes unchallenged appeal. We affirm.

Although the record fails to so disclose, it is assumed plaintiffs’ petitions and defendant’s motions, on appeal to district court, are identical in each of the cases presented.

March 1960, Bridge No. 2801, crossing Walnut Creek, in Pottawattamie County, located on a local secondary unimproved road, was destroyed by ice and never replaced.

April 8, 1966, county board of supervisors published notice of hearing on proposed vacation of that part of the roadway lying between the creek banks. Section 306.6, Code, 1966.

Plaintiffs, Annie A. Braden and Laura A. Rush, owners of land adjoining either side of the roadway and both sides of the creek, filed objections to the proposal, also claiming damages.

After hearing on objections and claims, the board entered an order of vacation as proposed and denied damages sought by plaintiffs.

Braden and Rush both appealed to district court. Section 306.11, Code, 1966.

The sole proposition urged by defendant in . support of reversal is that plaintiffs’ petitions failed to state a- cause of action because (1) the respective properties do not abut that portion of the roadway being vacated so as to affect rights of access to highways generally, and (2) plaintiffs’ individual rights of access to abutting roadway are not substantially interfered with or cut off.

I. Trial court’s rulings on motions for adjudication of law points are neither challenged nor argued on appeal. In that regard this court has repeatedly held a proposition neither assigned nor argued presents no question and need not be considered by us on review. See Associates Discount Corp. v. Held, 255 Iowa 680, 683-684, 123 N.W.2d 869.

[976]*976However, as counsel undoubtedly realized, law points unavoidably involved in the motions to dismiss must be accordingly considered.

II. The first question posed is whether plaintiffs’ properties abut that portion of the road vacated by defendant-board.

Walnut Creek is a nonnavigable waterway running generally north and south.

Braden owned land north of the subject road, the material portion here concerned consisting of a 240-foot tract dissected by the creek.

The Bush land consists of 40 acres south of the roadway, also divided by the stream.

Ordinarily the boundary line between lands of separate owners, bordering on a nonnavigable waterway, is the middle thread of the channel. But where, as in the ease at hand, such a watercourse flows over the land of a singular owner, he generally has title to the whole of the stream bed within the boundaries of his property. Holmes v. Haines, 231 Iowa 634, 639, 1 N.W.2d 746. See also Patton on Titles, section 81, page 287; Tiffany on Beal Property, Abridged Ed., section 674, page 689; 11 C.J.S., Boundaries, section 27(b)(2), page 571; 93 C.J.S., Waters, section 71, page 745; and 12 Am.Jur.2d, Boundaries, section 22, page 564.

III. However, defendant argues plaintiffs’ lands do not abut the bridgeway itself by reason of which there is no abutment with that part of the road vacated. This argument is without substance.

The order entered by defendant-board is not before us. But plaintiffs’petitions alleged the area vacated is the public road 66 feet wide between the banks of Walnut Creek. For our purpose this factual allegation must be accepted as true. See Burd v. Board of Education of Audubon County, 260 Iowa 846, 151 N.W.2d 457, 463, and Harvey v. Iowa State Highway Commission, 256 Iowa 1229, 1230, 130 N.W.2d 725.

With regard to the foregoing, section 306.8, Code, 1966, provides in part: “Any person owning land abutting on a road which it is proposed to vacate and close, shall have the right to file, in writing, a claim for damages at anytime on or before the date fixed for hearing.”

[977]*977And section 806.10, states, inter alia: “Said commission or board may dismiss the proceedings, or it may vacate and close such road, part thereof, or crossing, in which event it shall determine and state in the order the amount of the damages allowed to each claimant. Said order thus entered shall be final except as to the amount of the damages.”

As employed in section 306.8, supra, the term “land abutting on a road.” means lands adjoining, coming together with, contiguous to, meeting or touching a roadway. See section 4.1, paragraph 2, Code, 1966; Wormley v. Board of Supervisors, 108 Iowa 232, 234, 78 N.W. 824; State v. Fuller, Tex., 407 S.W.2d 215, 220-221; State ex rel. Badtke v. School Board of Joint Common School Dist., 1 Wis.2d 208, 83 N.W.2d 724, 726-727; 1. C. J.S., “Abut”, page 406 ; 25 Am.Jur., Highways, section 153, page 448; and Black’s Law Dictionary, Fourth Ed., pages 25-26.

Since each of these plaintiffs owned land, including the creek bed, adjoining the right-of-way vacated, they were owners of lands abutting the road vacated or closed.

IV. As aforesaid it is also urged by defendant-board, plaintiffs have the same rights of access to their lands as they had prior to the vacation of a part of the secondary road. Stated otherwise, it is argued plaintiffs can recover no damages because their rights of access have not been substantially interfered with or cut off.

However, that argument presupposes we are here dealing only with rights of access to and from a given point on the roadway and a given point on plaintiffs’ lands, which is not our problem.

Neither are we here confronted with a question as to whether an owner of a single unit tract of land adjacent to a highway may recover damages allegedly sustained by virtue of the vacation of a remote part of it, as in Hinrichs v. Iowa State Highway Commission, 260 Iowa 1115, 152 N.W.2d 248; Brady v. Shinkle, 40 Iowa 576; and other interim factually comparable cases.

In fact, the issue presented in the case at bar is whether an owner of land abutting an access free county road, part of which is vacated in such manner as to eliminate an only existing direct means of access between two portions of his land, operated [978]*978as a single unit, may be resultantly damaged within'the purview of chapter 306, Code, 1966.

Touching on that subject we said, in Lehman v. Iowa State Highway Comm., 251 Iowa 77, 83-84, 99 N.W.2d 404: “It is of course true that where, as here, a new highway is put through land its controlled-access character is relevant on the issue of' damages to the property resulting from the severance.

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Bluebook (online)
157 N.W.2d 123, 261 Iowa 973, 1968 Iowa Sup. LEXIS 793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braden-v-board-of-supervisors-iowa-1968.