Stewart v. City of Council Bluffs

12 N.W. 718, 58 Iowa 642

• Court: Supreme Court of Iowa
• Decided: June 12, 1882
• Status: Published

Opinion

Adams, J.

1. MUNICIPAL corporations: power to contract: right of way. It was held upon the' former appeal that the city had the power to make the improvement if-necessary for the health and safety of the city, and that it had the power to incur such reasonable expense as might be necessary to obtain the right ot way. lhe case, . , . as now before us, is submitted upon an agreed statement of facts. The statement shows that the object of the improvement was “the better protection of the persons and. the property of the city.” . It-also shows that the defendant had been unable to procure from the C., R. I. & P. R. Co., a right of way for such sum as it was willing to pay; that thereupon it employed the plaintiff to obtain the right of way, and agreed that if he would do so to issue to him a warrant for $700. We see no reason why, if the city was unable to procure the right of way advantageously through a direct negotiation by its officers, it might not do so by employing a third -person to negotiate for it, who might be a more skillful negotiator, or might bring influences to bear upon the railroad company which the city could not command. The contract then was not, we think, as the city contends, one which it was beyond the power of the city to make.

But it is said that the city had a right to abandon the construction of the improvement, and did abandon it, and having abandoned it, it did not need the right of way, and ought not to be held liable to pay the plaintiff for obtaining it.'

Possibly, if the city had abandoned the improvement, and notified the plaintiff that it did not need the right of way, before he1 had expended any time, labor or money in obtaining it, he could not have recovered more than nominal damages. But it does not appear that the city fully determined to abandon the - construction of the improvement, until after the plaintiff had procured the deed of the right of way and tendered it to the city.

Finally, it is insisted that the plaintiff in any event is not entitled to.recover the amount agreed to be paid him by the city, unless it is made to appear that the right of way cost him that amount in money or property, and, that the agreed statement of facts does not show that it cost him anything in money or property-.

This position we think must be predicated upon the idea that the city had not the power to bind itself to pay a specified sum. But as we have held that it had, the sum agreed to be paid constitutes the measure of its liability.

Affirmed.