Young v. Gormley , 119 Iowa 546 ( 1903 )

Ladd, J.

A strip of land had been in dispute for several years. It was claimed by the incorporated town of Mt. Yernon as a street — Penn street— extending from Main street, between lot 3 and lots 4 and 12 of Young’s addition, to the quarter-section line, but separated from Munroe street by a part of lot 5. It was claimed by plaintiffs as an inheritance from S. T. Young, who had platted the addition, and also because of adverse possession. The ' pleadings put in issue: (1) The existence of this street; (2) whether defendants, in what they did, were acting officially; (3) If not, whether they corruptly conspired together to injure the property of plaintiffs; (4) whether, if they did not so conspire, any. of them in fact injured said property; and, (5) if so, were such as did actuated by malice.

i allegation acy°nw?ieñ essential. Appellants insist that, as conspiracy was alleged, no recovery could be had unless this were proven. Were the wrong alleged actionable only because of an unlawful combination of several persons, the position would probably be sound. Jenner v. Carson, 111 Ind. 522 (13 N. E. Rep. 44); Collins v. Cronin, 117 Pa. 35 (11 Atl. Rep. 869). But where the tort may have been committed by one or more, independent of any conspiracy, that allegation is of no consequence, so far as the cause of action is concerned. ’Damage is then the gist of the action, and not conspiracy. In order to recover against all defendants, it is necessary to prove a combination or joint act of all. For this purpose proof of conspiracy may become essential. But if it turn out that but one was concerned, recovery may be had against that one the same as though he had been sued alone. If more than one jointly do the wrong, like recovery may be had, though conspiracy had not been established. In other words, the allegation of conspiracy in such cases is mere matter of inducement and evidence, the injury and damages being the gravamen of the action. Van Horn v. Van Horn, 56 N. J. Law, 318 (28 Atl. Rep. 669); Laverty v. Vanarsdale, 65 Fa. 507; Austin v. Barrows, 41 Conn. 287; Jones v. Baker, 7 Cow. 445; Parker v. Huntington, 2 Gray, 124; 4 Enc. Pl. & Prac. 739. II. The evidence without any conflict shows that the council, in regular session, adopted a resolution to open Penn street, in 1897, and another, November 6,1899, “that

2. record of proceedings of council; • presumed correct. the marshal and street commissioner be ordered to remove the sidewalk and fences now m m standing across Penn street. ? This appears from the record of the proceedings of the council, which, in the absence of any showing to the contrary, is presumed to be correct. Mann v. City of LeMars, 109 Iowa, 251. The last resolution was passed late at' night, after the regular business had been disposed of, and two members had left. They were apprised, however, that the matter would come up, and a quorum remained.. True, one councilman — Stevenson—was- asked whether he voted “to direct the street commissioner and the marshal to tear down the fences and sidewalks on the property in controversy claimed to belong to Mr. Young,” and answered, “No, sir.” But, his attention being called to the resolution,' he said that he had voted for it. A similar question was asked another, and he simply answered that he did not vote for that purpose.

3. malice: dence: submission of issue to jury, III. No complaint is made against the defendants for acts done as members of the council. The charge is that they employed these as masks to cover their efforts as individuals to injure plaintiff’s property. Of this, however, there is not the slightest evidence. Indeed, the record affirmatively .shows that plaintiff’s representative, Geo. W. Young, was at all times treated courteously by all members of the council when in session, and it fails to indicate ill will toward any of them on the part of any of the defendants. The land beyond Munroe street had been unoccupied up to 1894 or 1895, but improved rapidly thereafter, which developed a demand for this street. Petitions for its opening were presented to the council. The disputed land had not been taxed since 1860. In 1895 the board of equalization declared it not subject to taxation. In 1897 Young appeared before the board with abstract and plat, and insisted that it be placed on the assessment roll. ■ Thereupon a committee was appointed to investigate. It reported, and was directed to employ counsel. Subsequently advice from a reputable attorney was obtained to the effect that the strip was a street, and as such belonged to the town. Thereafter another committee was appointed to confer with Young an,d September 16, 1897, a motion was carried “to proceed to open Penn street.” Nothing further seems to have been done until April, 1898, when this portion of Penn street was stricken from the assessor’s list.

After this Young was again heard, when the necessity of litigation was mutually recognized, and he expressed the wish that the matter be settled. Some time in 1899 employment of an attorney was directed, and October 28th of the same year counsel who had furnished the opinion wrote to the mayor “that the proper thing to do is for the. city council of Mt. Tern on to go on, and treat the street as a public street, and throw the same open to the public. Then we will put the other parties in a position to have them commence some kind of an action or proceeding against us, in which we can fully and finally determine the question as to our rights and their rights. * * * You will therefore act accordingly.” It was in pursuance of this advice that defendants acted in the matters complained of. Their entire good faith in what they did is not put in issue by any of the evidence adduced. True, they knew the right to the property was in dispute, and some of them may have believed the plaintiffs entitled to it. But they were not learned in the law. It had been agreed that an adjustment by litigation was desirable. They had the right to yield their views to the opinion of counsel whose standing in the profession was such as to leave no doubt as to their competency. .Nothing in the record conflicts with their statement .to Herrick that, if “the property belonged to Mr. Young, they wanted him to have it, and, if it belonged to the city, they wanted it to have it.” There being no evidence of malice, that issue ought hot to have been submitted to the jury.

4. evdence: witness.0 IV. Several witnesses were asked if they had investigated whether the strip of land was a street, and, over defendant’s objections, were allowed to testify that they had, and had concluded that it was not; and, further, that they had informed some of the defendants. This was error. If offered as bearing on the motive actuating defendants, it was not admissible. Knowledge of facts may often be shown for that purpose, but never the opinions or conclusions of witnésses deduced therefrom. If offered as tending to prove the nonexistence of a street, it 'was improperly received, as that was not the subject of expert testimony, and the questions propounded had the additional vice of calling for an opinion on the ultimate issue to be passed upon by the jury.

V. Most of th$ other errors assigned relate to the claim for exemplary damages, and will not be likely to arise on another trial. Enough has been said to indicate the issues raised by the'record: (1) Whether the land in controversy belonged to plaintiffs; and, if so, (2) the extent of the actual damages occasioned by the trespass, and who of defendants are liable therefor. Of course, t •<? resolutions of the council can afford no protection against the claim for actual damages unless the tract is found to be a street. — Reversed.