Delashmut v. City of Oskaloosa

94 Iowa 722

• Court: Supreme Court of Iowa
• Decided: January 31, 1895
• Status: Published

Opinion

Granger, J.

The decree in this case is correct, both on legal and equitable grounds. The claim of the city is that by recent survey the street as it is at present, and has been for the past twenty-five yeajrs or more, improved, is some two feet too far west, and that for a proper permanent improvement of the street it should be moved east that distance. It appears in evidence that this street has been worked for thirty-five years, and that the street and alley crossings, the sidewalks, and all the improvements along the street have been made to conform to the street as accepted and improved by the city. There is evidence of lot comers being established and-marked when these improvements by the city and lot owners were commenced; and the street, as thus located, has been, by all parties, understood to be ais it is at present, until this recent survey. Nothing in evidence as to this new survey satisfies us that these parties have been mistaken. Before such a change is made, involving interests se important in the way of expense to abutting property owners, changes in their property, and the destruction of shade trees, not only valuable to the plaintiffs, but to the public, the court should be satisfied from the evidence that here is a substantial variance from the legally established line of the street. We concur in the finding of the district court that the trees are not an obstruction to- the proper improvement of the street. There seems to be nothing to elaborate. The case turns upon the evidence showing the facts. In view of this conclusion, it is not important that we consider th« question of estoppel. The judgment is affirmed.