
    Bertha S. Hunter, Appellee, v. City of Ottumwa, C. R. Allen, City Engineer, and Joseph Blunk, Appellants.
    1 Municipal corporations: street improvement: damages: benefits. Where the witnesses estimating the damages to abutting property by reason of grading the street, as in this case, testified to the value of the property both before and after the improvement, the benefits accruing to the property were necessarily taken into consideration.
    2 Same: injunction. A decree of injunction restraining a city from grading a street prior to the adoption of a resolution or ordinance establishing a grade should not be so broad as to prohibit the city from- thereafter exercising its legislative power to fix a grade and' improve the street.
    
      Appeal from Wapello District Court. — Hon. D. M. Anderson, Judge.
    Wednesday, February 15, 1911.
    Action for injunction and damages for cutting and grading ■ down a street abutting upon plaintiff’s property. There was-a trial to the court and a . decree for plaintiff awarding her damages of $1,200 and a perpetual injunction against the city and its officers. The defendant appeáls.
    
      Modified and affirmed.
    
    
      Clyde Q. Sparies, for appellants.
    
      Mitchell & Hunter and Jaques & Jaques, for appellee.
   Evans, J.

Plaintiff was the owner of a home abutting upon Union Street 'in the city of Ottumwa. In the alleged improvement of the street, the city proceeded, through its officers, to cut down said street to a proposed grade. The depth to which the street was actually cut varied from two to thirteen feet. No grade had ever been established upon such street at such point by resolution or ordinance, and the action of the city was wholly without authority in that respect. Only two questions are presented for our consideration: Eirst, was the amount of damages allowed excessive? Second, was the plaintiff entitled to a perpetual injunction in the form granted by the decree?

I. As to the first point, it is sufficient to say that the amount ordered as damages has sufficient support in the testimony. It is urged by appellant, however, that the witnesses estimated the damages without , . 7 taking into account any benefit to the prop- ° t x x. erty by reason of the proposed improvement. The record does not justify this contention. The witnesses testified to the value of plaintiff’s property before and after the excavation. They were not directed to exclude from consideration supposed benefits, as is done in ordinary condemnation cases. The benefits to accrue, therefore, necessarily entered into the supposed market value of the property after the excavation.

II. As to the permanent injunction ordered, the final decree contained the following provision: “It is further ordered, adjudged, and decreed that the city of Ottumwa, its officers, agents, and their successors in office, are each and all forever enjoined from cutting down Union Street along the premises in question to any greater depth than the same was cut at the time the temporary injunction was issued in this case, to wit, July 20, 1906, and they are forever perpetually enjoined from establishing a sidewalk grade on the side of Union Street adjoining the property owned by plaintiff at any greater depth than a distance of two feet six inches above the surface of Union Street, as it was at the time the injunction in this suit was issued. This does not preclude the city from establishing the grade on Union Street at a higher grade than above stated, but the same shall not he unreasonable in height above the grade of Union Street itself. To all of which the defendant excepts.” It is urged that this decree in this form will interfere with the future exercise of its legislative power by the city council. Counsel for appellee concedes that the decree should not interfere with the right of the council hereafter to establish by proper ordinance such grade or grades as shall seem to it proper. They urge, however, that the decree in the form in which it was entered may be construed as restraining the defendant city only from proceeding without the authority of properly enacted ordinances.

The decree is very sweeping in form. If it were before us for construction after it was too late to qualify its terms, we might find a way to construe it in accord with the contention of the appellee. Converse v. Town of Deep River, 139 Iowa, 732. The decree under consideration, however, purports to be perpetual not only as relating to present conditions, but it purports in terms to set a limit upon the legislative power of the city to enact future ordinances. We think, therefore, that there ought to be a modification of the decree in this respect. The plaintiff is entitled to a. perpetual injunction to restrain the city from illegally cutting said street without the authority of an ordinance thereto. As to what the city may hereafter do by a proper ordinance is not involved in the case.- Modified and affirmed.  